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MURDER

What needs to be decided now is what offence has A2 committed. A2 has inflicted one stab wound on the deceased with a penknife after an altercation between the two sides. The blow landed on the chest, a vital part of the body of the deceased. The question is whether A2 is guilty of murder or culpable homicide not amounting to murder.

20. In Hari Ram v. State of Haryana, (1983) 1 SCC 193, there was an altercation between the Appellant and the deceased. The Appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jelly and thrust it into the chest of the deceased. this Court observed that in the heat of altercation between the deceased on the one hand, and the Appellant and his comrades on the other, the Appellant seized a jelly and thrust it into the chest of the deceased. This was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does not appear that there was any intention to kill the deceased. this Court, therefore, set aside the conviction of the Appellant under Section 302 of the Indian penal code and instead convicted him under Section 304 Part II of the Indian penal code and sentenced him to suffer rigorous imprisonment for five years.

21. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342, in a trivial quarrel the Appellant wielded a weapon like a knife and landed a blow on the chest of the deceased. this Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the Appellant could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was no premeditation, no intention could be imputed to him to cause death. this Court, therefore, convicted the Appellant under Section 304 Part II of the Indian penal code instead of Section 302 of the Indian penal code and sentenced him to suffer rigorous imprisonment for five years.

22. In Hem Raj v. The State (Delhi Administration) (1990) Suppl. SCC 291, the Appellant and the deceased had suddenly grappled with each other and the entire occurrence was over within a minute. During the course of the sudden quarrel, the appellant dealt a single stab which unfortunately landed on the chest of the deceased resulting in his death. this Court observed that as the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation during the course of which the Appellant caused a solitary injury to the deceased, he could not be imputed with the intention to cause death of the deceased, though knowledge that he was likely to cause an injury which is likely to cause death could be imputed to him. this Court, therefore, set aside the conviction under Section 302 of the Indian penal code and convicted the Appellant under Section 304 Part II of the Indian penal code and sentenced him to undergo rigorous imprisonment for seven years.

23. In V. Subramani, there was some dispute over grazing of buffaloes. Thereafter, there was altercation between the accused and the deceased. The accused dealt a single blow with a wooden yoke on the deceased. Altering the conviction from Section 302 of the Indian penal code to Section 304 Part II of the Indian penal code, this Court clarified that it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302 of the Indian penal code is ruled out. The fact situation has to be considered in each case. Thus, the part of the body on which the blow was dealt, the nature of the injury and the type of the weapon used will not always be determinative as to whether an accused is guilty of murder or culpable homicide not amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to cause death. It is the totality of circumstances which will decide the nature of the offence.

24. The deceased received a single stab injury. PW-15 Dr. Subramani, who did the postmortem has described the said injury as a stab injury seen at the left chest, that is, junction of second rib bone and chest bone. On internal examination, he found that the injury had gone inside the left chest through the lungs into the heart. Undoubtedly, the injury was serious and on a vital part of the body, but it was caused by a penknife, which was in key bunch of the accused. A key bunch is carried by a person in routine course and a penknife is used for odd jobs, which a person may be required to do during the course of the day. It is not possible for us to say, in the facts of this case, that A2 had carried the penknife which was in his key bunch to stab the deceased. The background of this case also needs to be kept in mind. This case appears to have political overtones. The accused and the deceased belonged to different political parties. Admittedly, there was enmity between the two sides. There had been an altercation between the deceased and PW-1 on the one hand and the accused on the other hand. PW-1 had, at the instance of the deceased, asked for donation from A2 and A2 is stated to have made some disparaging remarks. The situation in the village was tense. The accused had then gone to the rice mill of the deceased. There again, there was an altercation between the two sides. The circumstances on record clearly indicate that A2 stabbed the deceased without premeditation, in a sudden fight in the heat of passion. His case falls in Explanation 4 to Section 300 of the Indian penal code. A2 knew that the act by which the death was caused was likely to cause death but it appears to us that he had no intention to cause death. In the light of the abovementioned judgments of this Court, this in our opinion, is a fit case where A2-Basavaraj should be convicted for the offence of culpable homicide not amounting to murder and should be sentenced for five years rigorous imprisonment under Section 304 Part II of the Indian penal code. Needless to say that he must be given set off for the period already undergone by him.

Law undoubtedly presumes that every person committing an offence is sane and liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 :

“(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

(2) There is a rebuttable presumption that the accused was not insane, when he committed the 7 crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.”

11. Section 84 of the IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts.

The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 8 495, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, as follows :

“19. ……..Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and selfcontrol, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.”

12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC 533, as follows:

“2. It is now wellsettled that the crucial point of time at which unsoundness of mind should be 9 established is the time when the crime is actually committed and the burden of proving this ties on the accused. In D.G. Thakker v. State of Gujarat it was laid down that “there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code, the accused may rebut it by placing before the Court all the relevant evidence – oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings”.

13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh vs. State of U.P., (1990) 3 SCC 190.

14. We shall now consider the sufficiency of other medical and defence evidence to examine if a reasonable doubt is created with regard to the mental state of the appellant at the time of commission of the assault on a preponderance of probability, coupled with the complete lack of consideration of the evidence of P.W.14. Merely because an injured witness, who may legitimately be classified as an interested witness for obvious reasons, may have stated that the appellant was not of unsound mind, cannot absolve the primary duty of the prosecution to establish its case beyond all reasonable doubt explaining why the plea for unsoundness of mind taken by the accused was untenable.[Devidas Loka Rathod Vs. State of Maharashtra –Criminal Appeal No.814 of 2017]

Penal Code, 1860—Section 303—Unconstitutionality—Effect of—Murder committed by life convict during PAROLE—Murder committed within a year of earlier murder—Due to unconstitutionality of Section 303 conviction treated as under Section 302—In view of cruel conduct sentence of life for subsequent conviction directed to commence after the completion of earlier sentence and not concurrently.

Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as a result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

Judgement

Tulzapurkar, J—The only point raised by counsel for the appellant in this appeal relates to the question of sentence. The appellant on conviction under S. 303, I.P.C. has been sentenced to death Counsel has contended that in view of this Court’s decision in Mithu v. State of Punjab, (1983) 2 SCC 277. S. 303. I.P.C. has been held to be unconstitutional and the appellant’s case in so far as the sentence is concerned will have to be regarded as any other case falling under S. 302, I.P.C. Secondly, counsel has urged that the instant case does not fall within the category of rarest of the rare cases so as to attract extreme penalty of death. Thirdly, counsel has brought to our notice that Brahmi, a co-accused along with the appellant both of whom were involved in the incident in which 32 injuries came to be inflicted to the deceased Ashok Kumar alias Shoki has been awarded life imprisonment and as regards the circumstances concerning the assault on Ashok Kumar the case of the appellant is not distinguishable from that of Brahmi and, therefore, the appellant deserves to be awarded lesser punishment, namely, imprisonment for life.

2. After hearing counsel on both the sides and after considering the facts and circumstances relating to the offence in question we are inclined to agree with the submission of counsel for the appellant that the appellant should be awarded the lesser punishment. The only manner in which the counsel for the prosecution sought to distinguished the case of the appellant from that of his co-accused. Brahmi was that whereas Brahmi was the first offender the appellant had been convicted earlier under Sec. 302 I.P.C. and secondly the appellant had committed the offence in question when he was out on PAROLE while serving life imprisonment under his first conviction which is reprehensible as during the PAROLE he should have behaved like a law-abiding citizen. In our view these two aspects in the facts and the circumstances of this case are not sufficient to take a different view in the matter of sentence qua the appellant. Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

3. The appeal is dismissed subject to the commutation of death sentence as indicated above.

Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

The principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under Section 302, IPC to imprisonment for life.

Penal Code, 1860—Section 302—Sentence—Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

Counsel for the Parties:

Satyapal Khushal Chand, Advocate, for Appellant

Prem Malhotra, Advocate (NP), for Respondent.

order

1. Consequent upon dismissal of his appeal by the High Court Krishan, the appellant herein, stands convicted under S. 302, IPC and sentenced to death for committing the murder of Ranbir, his brother-in-law, on October 23, 1994 inside District Jail, Sonepat, where the former was undergoing a sentence of imprisonment for life and the latter was an under-trial prisoner.

2. According to the prosecution case on the fateful day at or about 10-45 a.m. when the deceased was getting himself shaved by Ram Phal (P.W. 3), who is a barber by profession and at the material time was serving a sentence, in Barrack No. 3 of the Jail, the appellant came there with kassi (spade) in his hand and inflicted two successive blows on the head of Ranbir, with whom he had a property dispute as a result of which he fell down and started bleeding profusely. Ram Phal raised an alarm which attracted the attention of Head Constable Som Nath, who was on duty nearby. Ram Phal and Som Nath chased the appellant who had fled away in the meantime with the kassi, and nabbed him with great difficulty. They snatched the kassi from him and put him inside Barrack No. 4. They then went to Shri Ashok Kumar (P.W. 4), Assistant Superintendent of the Jail and narrated the incident and also handed over the kassi to him. Shri Kumar then arranged a vehicle to shift Ranbir to the General Hospital, Sonepat. There Ranbir was examined by Dr. R. R. Mittal (P.W. 1) and he found the following:-

“1. Incised wound in front of the left pinna extending upto mid-line of vault of skull which was 12 x 1 cms. x bone deep. Fresh bleeding was present and brain matter was coming out of the injury, and

2. Incised wound on the skull from its middle to parieto-temporal region measuring 10 x 1 cms. x bone deep with fresh bleeding. Brain matter was coming out of the injury. X-ray was advised in respect of skull and surgical opinion was sought.”

3. According to the doctor, both the aforesaid injuries could be caused by a sharp-edged weapon like kassi. The doctor sent a ruqa (Ext. PB) to In-charge, Police Post General Hospital, Sonepat, at 12 noon.

4. On receipt of a telephonic message from the city police station, S.I. Ami Singh (P.W. 8), who was then posted as In-charge Police Post, Gohama Road, Sonepat, first went to General Hospital, Sonepat, where he came to learn that Ranbir Singh had since been referred to Medical College and Hospital, Rohtak. Thereafter, he came to District Jail, Sonepat, where Chander Singh (P.W. 7) made a statement (Ext. PG) regarding the incident. He forwarded the said statement for registration of a case and took up investigation. Thereafter, S.I. Ami Singh recorded the statements of Ram Phal, Som Nath and Ashok Kumar under S. 161, Cr. P.C. He took possession of the kassi (Ext. P1) from Ashok Kumar and seized some blood stained earth from the place of incident. He also prepared a rough site plan (Ext. PI).

5. In the night intervening 26/27th of October, 1994 the Investigating Officer received a message from Medical College and Hospital, Rohtak that Ranbir Singh had since died. On receipt of this message, S.I. Ami Singh reached there along with H.C. Dhara Singh and Constable Suresh Kumar and conducted inquest proceedings (Ext. PX). He then sent the dead body for post-mortem examination. Post-mortem examination was conducted by Dr. A. R. Sharma (P.W. 10) in Civil Hospital, Rohtak and he noted two stitched wounds on his person corresponding to the medico-legal report. According to the doctor, the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.

6. The appellant who was already lodged in District Jail, Sonepat as a convict in some other murder case was put under arrest by S.I. Ami Singh. On 23-10-1994, S.I. Ami singh had deposited the Kassi Ext. P. 1 duly sealed in a packet and another packet containing blood stained earth with the Moharrir Malkhana Randhir Singh and on 16-11-1994 the said Head Constable Randhir singh handed over the same duly intact to the said Constable Vinod Kumar for being delivered at the Forensic Science Laboratory (F.S.L.) and the said constable delivered the same there duly intact on the same day. Subsequently, report from the F.S.L., Madhuban vide Ext. PP was received to the effect that there was human blood on the kassi (Ext. P. 1) and the blood stained earth lifted from the spot. On completion of investigation the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session.

7. The appellant pleaded not guilty to the charge levelled against him and stated that he had been falsely implicated. He took the stand that on the date of the incident he was on duty at the Sabzi Panja in Jail and came to the Barrack on hearing the alarm of whistles issued by the Lambardar on duty and they came to know that Ranbir was lying injured. He further stated that on seeing him injured, he started dressing him and while he was still dressing him, he himself became unconscious and thereafter regained consciousness in the hospital.

8. To sustain the charge levelled against the appellant the prosecution principally relied upon the ocular version of Ram Phal (P.W. 3) and Chander Singh (P.W. 7), the warden of the jail. Both the learned Courts below found that the above two witnesses were natural, probable and independent witnesses and there was no reason to disbelieve them. As their evidence stood amply corroborated by the medical evidence and the First Information Report, which was promptly lodged, the Courts below recorded their respective findings against the appellant.

9. We have for ourselves perused the entire evidence on record and see no reason to interfere with the concurrent findings recorded by the learned Courts below as they have been arrived at on a detailed and proper appraisal of the evidence and are based on cogent and convincing reasons. The conviction of the appellant under S. 302, IPC must, therefore, be upheld.

10. Coming now to the sentence we find that the principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under S. 302, IPC to imprisonment for life, but maintain the sentence of fine of ` 5,000/- and the sentence to be undergone in default of payment thereof. The appeal is thus disposed of.

A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.

ACTS:- Sections 364 and 302/34 of the Indian Penal Code, 1860

SUPREME COURT OF INDIA

Murugan Vs. State of Tamil Nadu

[Criminal Appeal No. 1498 of 2010]

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the final judgment and order dated 25.04.2007 passed by the High Court of Judicature at Madras in Criminal Appeal No. 804 of 2006 whereby the High Court dismissed the appeal filed by the appellant(Accused) and confirmed the order dated 02.08.2006 passed by the Additional Sessions Judge, Namakkal (Fast Track Court) in Sessions 1 Case No.5 of 2006 convicting the appellant under Sections 364 and 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him to undergo rigorous imprisonment for 7 years under Section 364 IPC and to pay a fine of Rs.1000/-, in default of payment of fine, to undergo further simple imprisonment for one month and imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5000/- in default of payment of fine, to undergo further simple imprisonment for two months. The sentences would run concurrently.

2. In order to appreciate the issues arising in the case, it is necessary to set out the prosecution case in detail:

3. One person by name “Kumar” (since dead) was the uncle of a girl “Geetha”. At the relevant time, Geetha was in sixth standard. Kumar was married but living separately from his wife. Kumar and Geetha were living in the one locality at a short distance. Kumar had developed liking for Geetha and wanted to marry her.

4. Murugan (father of Geetha) was not agreeable to the Kumar’s proposal to marry Geetha. Murugan(Geetha’s father) used to say that Kumar had already ruined the life of his wife and now he wanted to ruin his daughter’s life also. Kumar, on the other hand, used to threaten Geetha that one day he would kidnap her and marry her.

5. It is the case of prosecution, that on 01.12.2002 afternoon, Kumar went to the house of Geetha and demanded “Chili” to cook mutton. At that time, Geetha was alone in the house. When Geetha refused him to give Chili, Kumar entered into the house and took Chili of his own and left the house saying that one day, he would kidnap her and rape her.

6. On the same day at around 10 P.M., Kumar along with Murugan(appellant), who is his cousin brother (his aunt’s son) went to Geetha’s house and invited Murugan(Geetha’s father) for a drink and non-veg. dinner at his house. Murugan(Geetha’s father) accepted the invitation and went along with both of them to Kumar’s house.

7. When Murugan(Geetha’s father) did not return home, Geetha (PW-1) alone went to Kumar’s house at around 11 P.M. to find out as to why her father has not returned so far and what was he doing in Kumar’s house for such a long time. On reaching there, she, however, found that trio (Kumar, Murugan and the appellant) were sitting in the room on one iron cot and were dining together. The trio told Geetha that her father – Murugan would be coming shortly. Thereafter Geetha returned to her house.

8. Since Murugan did not return home till next day morning, Geetha (PW-1) and her mother Saroja (PW-2) went early morning to Kumar’s house to find out why Murugan has not returned so far to his house. The front door of the Kumar’s house was closed. Both of them, therefore, pushed the front door and on opening, they found that Murugan’s dead body was lying in the room near iron cot with many injuries on his body.

9. It is this incident which gave rise to filing of FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in PS Jedarpalayam, which was registered as Crime No. 224 of 2002 under Sections 302/364/34 of IPC. The police then started investigation, visited the house of Kumar, prepared Mahazar (Ex.P-13), drawn rough sketch (Ex.P-19), took photographs, prepared inquest report, recorded the statements of witnesses, conducted post-mortem of the dead body (Ex.P-4) and recovered the articles (M.O. 5 and 12 ).

10. The police then on 03.12.2002 arrested Kumar, who confessed his guilt. His confessional statement was accordingly recorded (Ex.P-15). Thereafter the police recovered weapon used in the crime (Aruval-MO-14) and the blood stained green shirts at his instance from his father’s house. It was then followed by the appellant’s arrest on the same day.

11. The police, on completing the investigation, filed the charge sheet against Kumar and the appellant herein for commission of the offences punishable under Sections 364 and 302/34 of IPC. The case was then committed to the Additional Sessions Judge, Namakkal for trial (Sessions Trial No. 5/2006).

12. Before the trial could begin, the main accused- Kumar died. The trial against him, therefore, stood abated whereas it continued against the co-accused 6 – appellant herein. The appellant, however, abjured the guilt.

13. In order to prove the charges, the prosecution examined 12 witnesses, marked 20 exhibits and produced material objects. In the proceedings under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”), the appellant was asked to explain the circumstances appearing against him but he denied the charges including the circumstances without offering any explanation.

14. By order dated 02.08.2006, the Additional Sessions Judge held the charges proved against the appellant and accordingly convicted him for commission of the offences punishable under Sections 364 and 302 read with Section 34 of IPC and awarded life imprisonment under Section 302 IPC and seven years under Section 364 and a fine amount of Rs. 5,000/- and Rs.1000/- respectively.

15. The appellant felt aggrieved by his conviction and the sentences awarded by the Additional Sessions Judge and filed appeal in the High Court.

16. By impugned judgment, the High Court dismissed the appeal and confirmed the judgment of the Additional Sessions Judge, which has given rise to filing of the appeal by way of special leave by the accused – Murugan in this Court.

18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.

19. We have perused the evidence with a view to find out whether the approach, reasoning and conclusion arrived at by the two Courts below are legally sustainable or not.

20. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused person which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

21. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.

22. In our considered opinion, the two Courts below have rightly held that the appellant’s conviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant’s conviction deserves to be upheld.

23. On perusal of the evidence, we find that the prosecution examined three witnesses (PW-1, PW-2 and PW-3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.

24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to the Kumar’s 10 proposal to marry his daughter-Geetha. This was proved with the evidence of PWs-1, 2 and 3. It was believed by the two Courts below and, in our opinion, rightly.

25. The prosecution then proved that the appellant along with Kumar had gone to the house of the deceased for inviting him for dinner at Kumar’s house on the same night. The deceased accepted the invitation and went to Kumar’s house to have dinner with Kumar and the appellant.

26. It was then proved that Geetha (PW-1) had gone to Kumar’s house at around 11 P.M. to see why her father did not return to his house and on reaching there, she found all the three sitting on iron cot and were having dinner. As per post-mortem report, it was proved that Murugan died between 11 P.M. and 12 P.M. the same night.

27. In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in cross-examination of PWs-1,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.

28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.

29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are:

First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter;

Second, the appellant and Kumar, both being the cousins, knew each other very well;

Third, both went together to the house of the deceased to invite him for a dinner at Kumar’s house;

Fourth, all the three had dinner together at Kumar’s house;

Fifth, Murugan died immediately after dinner;

Sixth, Kumar gave his confessional statement;

Seventh, recovery of weapon and cloths at the instance of Kumar; and

Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.

30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.

31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.

32. A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.

33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant after Kumar’s death for 14 appellant’s prosecution. We do not agree with this submission.

34. In our view, death of Kumar was of no significance so far as the appellant’s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.

35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.

36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above.

37. The appeal is thus found to be devoid of any merit. It fails and is accordingly dismissed.

Section 300 of the IPC explains what is murder and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must in all probability cause death or “such bodily injury as is likely to cause death.

“The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death.“

ACTS:- SECTION 299 AND 300 OF IPC

SUPREME COURT OF INDIA

Tularam Vs. State of Madhya Pradesh

[Criminal Appeal No.663 of 2018 arising out of S.L.P. (Criminal) No.7483 of 2017]

Madan B. Lokur, J.

1. Leave granted.

2. The appellant Tularam was accused and convicted of having committed the murder of Bhadri Lodhi during an altercation that took place on 9th June, 2002.

3. On that date, a quarrel took place between Ramnath and Raju at about 6 p.m. in the flourmill of Ramnath. The details of this quarrel are not available on record but it appears that subsequently at about 7.30 p.m. after Ramnath closed his flourmill and was returning home, he was accosted by Raju. A quarrel again ensued between the two and in the midst of that quarrel, they were joined by Bipatlal Lodhi, the grandfather of Raju who came with a lathi, Santu, the nephew of Ramnath and Bhadri Lodhi, brother of Ramnath. The quarrel escalated into the altercation and these persons were joined by Tularam, uncle of Raju who came with a ballam (this is a wooden or bamboo stick with a spear attached at the end). Another person Sakharam (also an accused but not before us) joined the fray carrying a lathi. During the course of the altercation which turned violent, Tularam pierced Bhadri Lodhi with the ballam on the left side of his chest and he fell down. Bhadri Lodhi was thereafter taken home where he was declared dead.

4. Some other persons involved in the altercation sustained injuries including Sakharam who was accused of having dealt a lathi blows on Santu.

5. During the trial that took place as a result of the altercation and the death of Bhadri Lodhi, the prosecution examined several eye witnesses including Ramnath (PW1), Maltibai (PW-3), Mahasingh (PW-5), Shanta Bai (PW-7), Singh Singh Gond (PW-8) Jogi Lodhi PW-10) and Hori Lal (PW-11). Each of these witnesses confirmed the altercation and the fact that Tularam had pierced Bhadri Lodhi on the left side of the chest with a ballam. The injuries were confirmed after an autopsy by Dr. S.N. Bhaskar (PW17) and the post mortem report is Exh.P.32. This shows one penetrating wound having a size of 3″ x 1/2″ x 1/4″ on the left 5th intercostal space, medial to left nipple.

6. On these broad facts of which there is no dispute, Tularam was convicted of an offence punishable under Section 302 of the Indian Penal Code for having murdered Bhadri Lodhi.

7. We have gone through the record of the Trial Court as well as of the High Court and the only limited issue before us is whether Tularam had the intention of causing the death of Bhadri Lodhi.

8. Section 299 of the IPC explains culpable homicide as causing death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out.

9. Section 300 of the IPC explains what is murder and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must in all probability cause death or “such bodily injury as is likely to cause death.” There are some exceptions when culpable homicide is not murder and we are concerned with Exception 4 which reads:

“Exception 4. – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

Explanation. – It is immaterial in such cases which party offers the provocation or commits the first assault.

10. Recently in Surain Singh v. State of Punjab1 it was observed that:

“The help of Exception can be invoked if death is caused (a) without premeditation,

(b) in a sudden fight,

(c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and

(d) the fight must have been with the person killed.

To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC……… A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.

11. The facts of the present case indicate that all the ingredients of Exception 4 to Section 300 of the IPC are present. The fight was sudden and not premeditated (this is the finding of both the courts) and Tularam is not found to have taken undue advantage of his carrying a ballam in the sense of inflicting any other serious injury, except a contusion to Ramnath. That being the position, it cannot be held that Tularam had the intention to murder Bhadri Lodhi or to cause him such bodily injury as is 1 (2017) 5 SCC 796 likely to cause death.

12. Section 304 of the IPC provides the punishment for culpable homicide not amounting to murder. Part I of this Section provides that if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death then the punishment may extend up to imprisonment for life. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death then the punishment may extend to imprisonment for 10 years.

13. The intention to cause death must not be readily inferred. We are afraid that both the Trial Court as well as the High Court have, on the basis of the mere fact that Tularam pierced the chest of Bhadri Lodhi with a ballam, assumed that he intended to cause the death of Bhadri Lodhi. There is nothing on the record to suggest such an intention and none of the witnesses have given any indication of Tularam’s intention to cause the death of Bhadri Lodhi. It is quite clear that during the altercation Tularam did pierce the chest of Bhadri Lodhi but the intention to kill him is not apparent. However, Tularam must be attributed with the knowledge that piercing the left side of the chest with a spear would result in a bodily injury that is likely to cause death.

14. In view of the evidence on record, we are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death. This knowledge must be attributed to Tularam.

15. Under the circumstances, the conviction of Tularam of an offence punishable under Section 302 of the IPC is set aside but he is convicted of an offence punishable under the second part of Section 304 of the IPC. The appellant has been behind bars for almost 14 years. His sentence is altered to the period of incarceration he has already undergone. He be released forthwith.

THE ACCUSED MUST EXPLAIN THE CIRCUMSTANCES U/S 313 “When the incident admittedly occurred in their house”

It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

ACTS:-Section 302/34 of the Indian Penal Code READ WITH Section 201 IPC –

2. These appeals are filed by the accused persons against the final judgment and order dated 20.05.2014 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.1114 of 1986 whereby the High Court dismissed the appeal in respect of the appellants-accused and affirmed the judgment and order dated 07.05.1986 passed by the Additional Sessions Judge, Fatehpur in Sessions Trial No. 291 of 1984.

3. In order to appreciate the issues involved in the appeals, it is necessary to set out the facts of the case.

4. Four persons, namely,

(1) Tribhuwan Singh (appellant),

(2) Chandra Bhawan Singh (appellant)

(3) Smt. Makoi Devi and

(4) Jwala Singh were prosecuted for committing murder of one lady by name “Satyawati”.

5. The Additional Sessions Judge, Fatehpur by his judgment dated 07.05.1986 in Sessions Trial No. 291 of 1984 acquitted one accused-Jwala Singh but convicted the remaining three accused. Tribhuwan Singh was convicted under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/- in default of payment of fine, to further undergo rigorous imprisonment for one year. Smt. Makoi Devi was convicted under Section 302/34 IPC and was sentenced to undergo imprisonment for life. Chandra Bhawan Singh was convicted under Section 32/34 IPC and was sentenced to undergo imprisonment for life and further convicted under Section 201 IPC and was sentenced to undergo rigorous imprisonment for five years. All the sentences of Chandra Bhawan Singh would run concurrently.

6. The aforementioned three-convicted accused felt aggrieved of their respective conviction and sentence awarded by the Additional Sessions Judge filed appeal in the High Court. The High Court, by impugned judgment, allowed the appeal in respect of one accused – Smt. Makoi Devi and accordingly acquitted 3 her from the charges leveled against her but dismissed the appeal in respect of remaining two accused persons, namely, (1) Tribhuwan Singh and (2) Chandra Bhawan Singh and accordingly confirmed their conviction and the sentence awarded by the Additional Sessions Judge.

7. The remaining two accused felt aggrieved by their respective conviction and award of sentence filed separate special leave petitions in this Court.

8. So far as SLP(Crl.) No. 7049 of 2014 is concerned, it is filed by Chandra Bhawan Singh whereas SLP(Crl.) No. 7664 of 2014 is concerned, it is filed by Tribhuwan Singh.

9. In both these special leave petitions, the challenge is to the impugned judgment of the High Court, which has confirmed their conviction and sentence.

10. In short, the case of the prosecution is as under:

11. All the four accused named above are the members of one family. Smt. Makoi Devi is the mother of Tribhuwan Singh and Chandra Bhawan Singh. In other words, Tribhuwan Singh and Chandra Bhawan Singh are real brothers being the two sons of Smt. Makoi Devi.

12. The deceased-Satyawati was the wife of Tribhuwan Singh. Their marriage was performed in the year 1981. Satyawati stayed in her matrimonial home with her husband for 8 days and then returned to her parents’ house.

13. It is the case of the prosecution that the members of Satyawati in-laws family, which included the four accused named above, were harassing her while she was staying in her in-laws house for not bringing any dowry in her marriage. The family members had been demanding “motor cycle” in dowry. Due to constant harassment given to her by the aforementioned four accused persons, it had become unbearable for her to stay in the house and, therefore, she returned to her parents’ house and started living with her parents.

14. On 15.03.1984, Jwala Singh and Chandra Bhawan Singh went to Satywati’s parents’ house and brought Satyawati back to her in-laws house. On 18.03.1984 (after 3 days), Satyawati was found dead in her in-laws house. She died due to gun shot injuries.

15. Chandra Bhawan Singh-the elder brother of Tribhuwan Singh lodged a FIR in the Police Station, Kishanpur on the same day, i.e., 18.03.1984, informing therein that Satyawati committed suicide in the house by gun shot injuries and that her dead body was lying in the courtyard of the house. One FIR was also lodged by village Pradhan. It was registered as FIR No. 30/1984 (GD No. 14/84) at PS Kishanpur. The brother of the deceased-Rajender (PW-1) lodged the 6 FIR on the same day stating therein that all the four accused named above have killed his sister because of non-fulfillment of their demand for dowry.

16. On 19/20.04.1984, all the four accused persons were arrested. In the investigation, the police recovered the Gun at the instance of Tribhuwan Singh from his house, which was alleged to be used in commission of the offence. The post mortem of the dead body was performed which disclosed that Satyawati was murdered. The police then made further investigation, collected evidence, obtained ballistic report from the experts and recorded the statements of the accused persons and other witnesses.

17. On 09.06.1984 the police filed Challan. The case was committed to the Additional Sessions Judge, Fatehpur for trial. The Additional Sessions Judge framed charges against the four accused persons for commission of the offences punishable under Sections 7 302/34 and 201 of IPC read with Section 4 of the DP Act. The prosecution examined six witnesses to prove their case.

18. By order dated 07.05.1986, the Additional Sessions Judge acquitted Jwala Singh finding no evidence against him but convicted Tribhuwan Singh (husband), Smt. Makoi Devi (mother-in-law) and Chandra Bhawan Singh (brother-in-law) and sentenced them to undergo life imprisonment for killing Satyawati.

19. Thribhuwan Singh, Smt Makoi Devi and Chandra Bhawan Singh felt aggrieved and filed appeal in the High Court at Allahabad against their conviction and sentence awarded by the Additional Sessions Judge.

20. By impugned judgment, the High Court dismissed the appeal filed by Tribhuwan Singh and Chandra Bhawan Singh and accordingly upheld their conviction and sentence. However, the High Court acquitted Smt. Makoi Devi (mother-in-law) from all the charges finding no evidence against her.

21. It is against this judgment, the accused Tribhuwan Singh and Chandra Bhawan Singh have filed the present two appeals by way of special leave in this Court. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

22. So far as acquittal of Jwala Singh and Smt. Makoi Devi is concerned, it has attained finality because the State did not file any appeal in the High Court and nor in this Court.

24. Mr. Nagendra Rai, learned senior counsel for the appellants(accused) while assailing the legality and correctness of the impugned judgment contended that firstly, the conviction of both the appellants, though 9 concurrent in nature, is neither factually and nor legally sustainable.

25. In the Second place, he contended that since the entire case of prosecution is founded on circumstantial evidence, it was necessary for the prosecution to have adduced evidence to prove the complete chain of events. Learned counsel contended that there is no evidence much less sufficient evidence adduced by the prosecution to prove the chain of events leading to the guilt of committing the murder of Satyawati by the appellants and hence the conviction is bad in law.

26. In the third place, learned counsel to support his second submission took us through the evidence with a view to show that chain of events to prove the guilt qua the appellants is not established.

27. In the fourth place, learned counsel contended that the circumstances appearing in the case from the 10 evidence would show that Satyawati committed suicide.

28. In reply, learned counsel for the respondent (State) supported the reasoning and the conclusion arrived at by both the Courts below and prayed for dismissal of the appeals calling for no interference in the concurrent findings of both the Courts below.

29. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.

30. In our opinion, both the Courts below properly appreciated the evidence and came to a right conclusion that the appellants were responsible for commission of the offence of murder of Satyawati.

31. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and secondly would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

32. We, however, made endeavour to peruse the evidence with a view to find _ out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable in law or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable.

33. We find that there is evidence to prove the factum of demand of dowry. Rajender(PW-1) is the real brother of the deceased. He was the complainant. His evidence was rightly relied on by the two Courts below for holding that the appellants were persistently making a demand of dowry (motor cycle) from Satyawati and her family members and they used to harass her for such cause. The testimony of PW-1 is natural and consistent having no material contradiction, we, therefore, find no justification to disbelieve it. The same deserves to be accepted.

34. So far as the story of suicide set up by the appellants is concerned, it is, in our view, wholly unbelievable on the evidence brought on record.

35. First, it is not possible rather difficult for a person to commit suicide by using DBBL Gun;

Second, it has come in evidence that there were as many as 7 gun shot injuries noticed on the body of Satyawati. In our view, It is not possible for a person to commit suicide by firing seven gun shots one after the other on his/her body with the use of DBBL Gun in hands. However, one can commit suicide by firing one shot with a pistol. Such was, however, not the case of the appellants.

36. Coming to the involvement of the appellants in commission of the offence, we find that the High Court relied on the following circumstances appearing against the appellants for holding them guilty of commission of the offence of murder of Satyawati. These circumstances are extracted hereinbelow: “Here prosecution has discharged its part of the burden by leading evidence of which it was capable by substantiating the fact

(i) that there has been demand of dowry

(ii) deceased has been taken to her in laws house

(iii) at the time of death, deceased has been staying with her in laws and appellants are the inmates of the house

(iv) death in question has taken place inside the house

(v) injuries caused clearly reflects that it is case of murder

(vi) story of suicide set up by appellant No.3 was not at all supported by medical evidence (vii) DBBL gun has been used in the commission of offence and once chain of events are clearly linked up then in view of Section 106 of Evidence Act, as young bride in question has been killed inside the house, then there is corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The principle is that when an incriminating circumstance is put to the accused and said accused does not offer any explanation which on the face of it is found false or untrue, then the same becomes additional link in the chain of circumstances to make it complete.”

37. In our considered opinion, the aforementioned seven circumstances set out by the High Court for holding the appellants guilty cannot be faulted with. These seven circumstances do establish the chain of events and being directly connected with the incident in question, establish the involvement of the appellants in commission of the offence beyond reasonable doubt. In our opinion, the test laid down to prove the guilt by circumstantial evidence in this case is fully satisfied by the aforementioned seven circumstances against the appellants.

38. That apart, we also find from the evidence that Chandra Bhawan Singh-the appellant herein was the first to lodge the FIR about the incident wherein he stated that Satyawati has committed suicide. Apparently, this fact proves that first, he was present in the house where Satyawati was found dead and second, he falsely stated that Satyawati committed suicide because he wanted to divert the attention of the police from the reality. As held above, no evidence was led to prove that it was a case of suicide.

39. We also find that both the accused (appellants herein) in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 failed to give any explanation when asked about the circumstances in which the incident occurred in their house.When the incident admittedly occurred in their house, the appellants were required to explain the circumstances in which Satyawati died. They, however, failed to give any explanation.

40. We also find that Tribuhuwan Singh said that he was not present in the house at the time of the occurrence and on that day he was in Allahabad. He also failed to adduce any evidence to prove this fact.

41. We are, therefore, of the considered view that both the Courts below rightly held the appellants guilty for commission of the offence in question and, therefore, we find no good ground to take a different view than what is taken by the two Courts below.

42. In view of the foregoing discussion, the appeals fail and are accordingly dismissed.

LAST SEEN THEORY EXPLAINED: There is noeye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant.Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly.

But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place.

If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

1. The appellant assails his conviction under Section 302 read with Section 201 I.P.C., by the Additional Sessions Judge, Hissar in case No.54SC (RBT) of 2008, affirmed by the High Court, based on the last seen theory.

2. PW7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with regard to his missing nephew, the deceased Kapil Kumar who was thirteen years old. The deceased had gone to the village the previous evening at about 6:00 PM to deliver milk to customers. The witness and his relative PW9, Richhpal had seen the 1 deceased with the appellant at about 9:00 PM on the Khairpur Road, Sarangpur, going on a bicycle together. The deceased did not return home at night. His dead body was found the next morning lying concealed in a heap of dry fodder in the fields of Subhash. The appellant was stated to have had an altercation with the deceased a few days ago with regard to payment of milk. The disclosure by the appellant under Section 27 of the Evidence Act after his arrest, led to recovery of the atlas bicycle belonging to PW7, and the milk can with the name of the witness inscribed on it.

3. Learned Counsel for the appellant assailing the conviction, submitted that the dead body was found at a considerable distance from where he was last seen with the deceased and in the opposite direction. It is highly unlikely that the appellant would have carried the dead body for the long distance. The recovery is planted, as the second seizure witness Kheda had not been examined. The appellant would not have hidden the bicycle and the milk can near his own house to facilitate his implication. The story of the milk can and an altercation few days earlier in Court, were improvements as no such statement had been made by PW7 in the FIR or statement under Section 161 Cr.P.C.

4. There was a contradiction between the evidence of PW7 and PW9 with regard to intimation given to the Sarpanch at night itself. There was also a contradiction between the statement of the two witnesses with regard to time when the dead body was discovered and the police reached the spot. There was no evidence with regard to the bicycle as belonging to PW7. The father of the deceased, PW8, Subhash had come to the village in the morning itself looking for his son which is suggestive that the deceased was missing since earlier creating doubts about the last seen theory. Alternately, if the deceased was missing since the previous night, the conduct of PW7 in not informing PW8 at night itself was highly unnatural. PW7 and PW9 were thus not reliable witnesses.

To sustain a conviction on basis of circumstantial evidence, it was necessary that all links in the chain of circumstances must be complete leading to the only hypothesis for guilt of the accused. If there were any missing link in the chain of circumstances and the possibility of innocence cannot be ruled out, the benefit of doubt must be given by acquittal. Any recovery on basis of confession, under Section 27 of the Evidence Act, cannot form the basis for conviction.

5. Learned counsel for the State submitted that the deceased was last seen with the appellant the previous night at about 9.00 PM going on a bicycle and did not return at night. The dead body was found next morning in the vicinity of the area they were last seen together. The postmortem conducted on 12.09.2007 at 2:15 PM estimates the time elapsed since death as 2436 hours and which coincides with when the deceased was last seen with the appellant. Motive for the crime existed. The conduct of the appellant in absconding after the occurrence is also an incriminating factor against him. PW7 had identified the bicycle as belonging to him and the milk can had his name inscribed on it.

6. We have considered the respective submissions and the evidence on record. There is noeye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant.Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly.

But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place.

If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

7. Both PW7 and PW9 have consistently stated having seen the deceased going with the appellant on a bicycle at 9.00 PM the previous evening. The deceased did not return home at night. The appellant was also not to be found at home. The corpse of the deceased was recovered the next morning hidden in a heap of fodder in the fields. The FIR was lodged promptly on 11.09.2007 naming the appellant as a suspect. An FIR is not to be read as an encyclopedia requiring every minute detail of theMay 01, 2018 occurrence to be mentioned therein. The absence of any mention in it with regard to the previous altercation, or the presence of the milk can, cannot affect its veracity so as to doubt the entire case of the prosecution. The altercation suffices to establish motive.

The appellant has not led any evidence regarding his not being in the company of the deceased or that they had subsequently parted ways. The appellant has not led any evidence, despite his statement under Section 313 Cr.P.C. that he would do so, why he did not return home at night or his whereabouts otherwise. PW8, father of the deceased, was informed in the morning of 11.09.2007 by PW7 after which he came to the village. The 6 deceased was a thirteen year old hardly in a position to resist the appellant. We see no reason why the two witnesses being related to the deceased would depose falsely and shield the real offender, especially when the appellant has not given any reason or led any evidence for his false implication.

8. The postmortem was done on 12.09.2007 at about 2:15 PM by PW12, Dr. Sunil Gambhir opining that death was due to strangulation by manual throttling. The time elapsed since death has been estimated as 24 to 36 hours. The witness has deposed that death could be estimated to have occurred at about 10.00 PM on 10.09.2007. The body has been recovered in the vicinity of where the deceased was last seen with the appellant. The fact that it may be in the opposite direction is hardly relevant.

9. The recovery of the atlas cycle on the confession of the appellant, identified by PW7 as belonging to him, as also the recovery of the milk can on the same basis with the name of PW7 inscribed on it with nail polish and the fact that the appellant was absconding after the occurrence till his arrest on 16.09.2007 are additional incriminating factors which complete the links in the chain of circumstances. The recovery having been proved by PW7, the failure to examine the other seizure witness, Kheda, is of no consequence.

10. In the entirety of the facts and circumstances of the case, we find no reason to interfere with the conviction of the appellant.

Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail.

ACTS:- Section 302, IPC AND Section 389 of the Code of Criminal Procedure

Criminal Procedure Code, 1973—Sections 389 and 379—Suspension of sentence and grant of bail—Pendency of appeal before Supreme Court—jessicaLal murder case—Applicant-appellant found acquitted by trial Court, but convicted and sentenced to life imprisonment under Section 302, IPC by High Court in appeal—Appeal by applicant-appellant likely to be heard by Supreme Court within ‘measurable distance of time’—In view of gravity of offence and manner in which it was committed, application not allowed.

Criminal Procedure Code, 1973—Section 389—Suspension of sentence and grant of bail—Grant of bail during period of trial and absence of misuse of liberty—Cannot per se warrant suspension of sentence and grant of bail.

C. K. Thakker, J—The present application is filed by the appellant-accused under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for suspension of sentence pending appeal in this Court and to release him on bail.

2. Since an appeal against an order of conviction and sentence recorded by the High Court of Delhi is admitted by this Court and awaits final hearing, we will not enter into larger questions and deal with the present application for suspension of sentence and bail.

3. Shortly stated, the case of the prosecution was that on April 29-30, 1999, a party was organized at Tamarind Cafe’ inside Qutub Colonnade. It was a private party where certain persons were invited and liquor was served. jessica Lal (since deceased) and one Shyan Munshi were in charge of the bar. It was the allegation of the prosecution that appellant Sidhartha Vashisht alias Manu Sharma along with his friends came there and asked for liquor. jessica Lal and Shyan Munshi did not oblige him by providing liquor since the bar was closed. According to the prosecution, the appellant got enraged on refusal to serve liquor, took out his 22 pistol and fired two rounds, first into the ceiling and the second at jessica Lal. jessica Lal fell down as a result of the shot which proved fatal and she died. According to the assertion of the prosecution, several persons witnessed the incident. Beena Ramani who was present, stopped the appellant and questioned him as to why he had shot jessica Lal. She also demanded weapon from the accused but the accused did not handover pistol and fled away.

4. FIR was lodged, a case was registered and investigation was carried out. At the trial, more than 100 witnesses had been examined. The trial Court acquitted the accused holding that it was not proved by the prosecution that the accused had committed the offence with which he, along with other accused, was charged.

5. The State preferred an appeal against an order of acquittal recorded by the trial Court. The High Court of Delhi held that the trial Court was wrong in acquitting the accused and the prosecution was successful in proving the guilt against the appellant (as well as two other accused) and accordingly recorded conviction inter alia for an offence punishable under Section 302, Indian Penal Code (IPC) and imposed sentence of imprisonment for life.

6. The High Court observed that it has “no hesitation in holding” that the appellant was guilty of an offence punishable under Section 302 read with Sections 201 and 120B, IPC and also under Section 27 of the Arms Act, 1959 for having committed murder of jessica Lal on April 29-30, 1999 at ‘Tamarind Cafe’ and ordered him to undergo rigorous imprisonment for life and also imposed sentence for other offences.

7. With regard to the other two accused, however, the Court held that they were guilty for committing an offence punishable under Sections 201 and 120B, IPC.

8. The appellant-applicant approached this Court by instituting an appeal under Section 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 as also under Section 379 of the Code. The appeal was placed for admission. On March 7, 2007, the appeal was admitted and notice was issued on application for bail. Counsel appeared on behalf of the respondent and accepted the notice. It was ordered to be listed in the first week of April, 2007, meanwhile, counter affidavit, if any, was to be filed.

9. On April 2, 2007 when the matter appeared on Board, the Court passed orders of bail in respect of other accused, but in the instant case (Crl. M.P. No. 1775 of 2007), the Court fixed final hearing of the matter. It, however, appears that the appeal could not be heard. On January 24, 2008, the Court ordered listing of appeals along with bail applications “before any other appropriate Bench” on 12th February, 2008. The matter was thus placed before this Bench.

10. In view of several other matters, however, the appeal could not be taken up for hearing. Mr. Ram Jethmalani, learned senior advocate, appearing for the appellant-accused, no doubt, requested the Court to take up the matter out of turn. He alternatively tively submitted that if the appeal is not heard, the application for bail may be heard as according to him, he did not press for bail earlier when the appeal was placed for, admission hearing and was admitted since the Court had fixed final hearing of main matter. According to him, the appellant was in jail and if the appeal will not be heard for a considerable long time, serious prejudice will be caused to the accused. On the facts and in the circumstances, therefore, we directed the Registry to place the application for suspension of sentence and grant of bail on Board so that an appropriate order may be passed on the, prayer of the applicant-appellant-accused.

11. We have heard learned counsel for the parties.

12. The learned counsel for the applicant submitted that no case has been made out by the prosecution against the appellant-accused. The trial Court, after considering the evidence of the prosecution witnesses in its entirety, recorded an order of acquittal in favour of the accused. He submitted that the trial Court held that P.W. 1 Deepak Bhojwani and P.W. 30 Shravan Kumar had been ‘planted’ by the prosecution. P.W. 2 Shyan Munshi had expressly stated that shots were fired by two persons and appellant-accused was not one of them. Neither P.W. 1 Deepak Bhojwani nor P.W. 2 Shyan Munshi, nor P.W. 3 Shiv Dass Yadav, nor P.W. 4 Karan Rajput were eye-witnesses. For rejecting ocular evidence of P.W. 6 Malini Ramani and P.W. 20 Beena Ramani, cogent and convincing reasons have been recorded by the trial Court. It was not proved that Tata Safari was in possession of the appellant-accused, nor was there anything to show that he used the said vehicle on 29th April, 1999. Report of ballistic expert does not support prosecution and on that ground also, the trial Court was right in passing the order of acquittal.

13. According to the learned counsel, Beena Ramani P.W. 20, was not an eye-witness. A statement to that effect was made by the Public Prosecutor at the trial in the Sessions Court. It was also clear that a false excise case had been registered against the said witness and she was pressurised to depose in favour of prosecution and as soon as her evidence was over, she was obliged by compounding the offence on imposing fine which went to show that it was the systematic effort of the prosecution to involve the appellant-accused who was totally innocent. The counsel also submitted that photograph of the accused was collected by the Police during investigation and was shown to the prosecution witnesses and identification of the accused was meaningless. Media had played active role and even before the conclusion of the trial, they had virtually described the applicant not as an ‘accused’ but as a ‘convict’ or an ‘offender.’ According to the learned counsel, the trial Court dispassionately and objectively considered the evidence in its proper perspective without being influenced by extraneous factors and granted benefit of doubt to the accused. The High Court was ‘wholly’ wrong in reversing the finding of the trial Court and in convicting the applicant and in imposing sentence of imprisonment for life. The order passed by the High Court, submitted the counsel, is not in consonance with law and the applicant has fair and good chance of his appeal being allowed. He is in jail since long and as the appeal is likely to take time, a reasonable prayer for suspension of sentence and grant of bail deserves to be accepted by enlarging the applicant-accused on bail on such terms and conditions as this Court deems fit.

14. Mr. Gopal Subramanyam, learned Addl. Solicitor General, on the other hand, strongly opposed the prayer made by the applicant of suspension of sentence and grant of bail. He submitted that the order of acquittal recorded by the trial Court was clearly wrong and against the evidence on record. The High Court, as a Court of ‘first appeal,’ considered the evidence and held that the trial Court was ‘wholly’ wrong in not believing the prosecution witnesses. The High Court also observed that the grounds which weighed with the trial Court for not believing prosecution witnesses, could not be said to be legal, proper or based on evidence on record. The counsel submitted that there was no reason for the trial Court not to believe evidence of P.W. 1 Deepak Bhojwani, P.W. 30 Shravan Kumar, P.W. 20 Beena Ramani, P.W. 6 Malini Ramani and other witnesses. The counsel submitted that the High Court considered in detail, the reasons recorded by the trial Court and rightly observed that to describe a particular witness as ‘planted’ by the prosecution is a serious matter and normally no Court of law would proceed on that basis. Mr. Subramanyam also submitted that from the prosecution evidence, it is clear that the applicant along with other accused came to Tamarind Cafe on 29th April, 1999, asked for liquor and when he was refused liquor on the ground that the bar was closed, he became very angry, took out his 22 pistol and fired two rounds; one towards ceiling and the other towards jessica Lal due to which she died. This was witnessed by several persons who were present at that time. Some of them, however, did not support the prosecution. The learned Addl. Solicitor General submitted that the terror of the accused was clear from the fact that about two dozen witnesses had been turned hostile. The trial Court ought to have considered this aspect. But even otherwise, in view of the above situation, the witnesses who were examined and supported the prosecution ought to have been believed by the trial Court. It, however, failed to do so. The High Court was, therefore, ‘fully’ justified in believing the evidence of those witnesses and in recording the order of conviction.

15. It was also stated that according to the High Court, after the commission of offence, the accused absconded. His farm house was raided by the police authorities during the course of investigation. He was neither found there nor did he surrender immediately. The High Court also recorded a finding that Tata Safari, used by the accused at the time he visited Qutub Colonnade was recovered from NOIDA which was removed from the place of offence. According to the High Court, the evidence on record showed that Tata Safari was parked at Qutub Colonnade in the night of April 29-30, 1999. The vehicle belonged to Piccadilly Agro Industries Limited of which the accused was admittedly a Director. The vehicle was surreptitiously removed from the scene of occurrence. The High Court noted that it was admitted by the accused that he was having licensed pistol of .22 bore. The High Court was also aware that several witnesses turned hostile and did not support the prosecution but from the available material, it was proved beyond reasonable doubt that it was the applicant who had visited Qutub Colonnade on the night of 29th/30th April, 1999 and demanded liquor and on refusal by jessica Lal and Shyan Munshi, he became angry and fired two shots one of which hit jessica Lal and proved fatal. It was, therefore, submitted by the learned Addl. Solicitor General that the order passed by the High Court is legal, valid and in consonance with law and no error has been committed by the High Court in setting aside the order of acquittal recorded by the trial Court.

16. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent Criminal Court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

17. In para 56, the High Court observed as under :

“56. In the totality of circumstances adduced from material on record, the judgment under challenge appears to us to be an immature assessment of material on record which is self-contradictory, based on misreading of material and unsustainable. We find that Beena Ramani has identified Sidhartha Vashisht alias Manu Sharma, Amardeep Singh Gil, Alok Khanna and Vikas Yadav to be the persons present at the Tamarind Cafe at the time of the incidence. She also saw Manu Sharma firing the fatal shot which hit jessica Lal. Her testimony finds corroboration from the testimony of Malini Ramani and Geroge Mailhot. There is evidence on record to show that Manu Sharma had a licensed pistol of .22 bore which he has not produced to establish his innocence and on the contrary has taken false plea that the pistol, its ammunition and licence had been removed by the Police on 30-4-1999. We also find from the material on record that Manu Sharma abandoned his vehicle while making good his escape. We also find that the ammunition used in the causing of the firearm injury to jessica Lal was of .22 bore which Manu Sharma admittedly possessed and a similar live cartridge was recovered from the abandoned Tata Safari. From this, we have no hesitation in holding that Manu Sharma is guilty of an offence under S. 302. I.P.C. for having committed the murder of jessica Lal on 29/30-4-1999 at the Tamarind Cafe as also under S. 27. Arms Act.”

(Emphasis supplied)

18. The High Court has also given cogent reasons for not accepting the view of the trial Court and grounds recorded for not believing prosecution witnesses.

19. Mr. Ram Jethmalani, learned senior advocate no doubt submitted that the trial Court was right in not relying upon the prosecution witnesses, but Mr. Gopal Subramanyam submitted that the approach of the trial Court was incorrect and improper. According to the High Court it was on the verge of ‘perversity.’

20. It is premature to express any opinion, one way or the other at this stage but the fact remains that the order of acquittal recorded by the trial Court has been set aside and the applicant-accused has been convicted for an offence punishable under S. 302, I.P.C. and ordered to undergo imprisonment for life.

21. Mr. Ram Jethmalani, learned senior advocate, invited our attention to several decisions of this Court. Some of them relate to grant of bail at the pre-trial stage. The Courts in such cases have considered several factors, such as, there is a presumption of innocence in favour of an accused till it is established that he is guilty; he has to make preparation for his defence and he must have every opportunity to look after his case; it will be very difficult for an accused to make such preparation if he is in jail than he is out of jail. One of the considerations which a Court of law would keep in mind at that stage is to secure the attendance of the accused. Hence, on security being furnished, he is released on bail if the Court is satisfied that the case on hand was fit one to grant such concession in favour of the accused.

“As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment, that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty even if eventually he is acquitted is improper. This is most manifest. The only legitimate purposes to be served by keeping person under trial in detention are to prevent repetition of the offence with which he is charged where there is apparently danger of such repetition and to secure his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused’s guilt but the very trial itself is based on a prima facie assumption of the accused’s guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose however is manifestly to secure the attendance of the accused.” (Emphasis supplied)

23. In concurring judgment, Mukherji, J. also stated :

“The principle to be deduced from Ss.496 and 497, Criminal P. C., therefore is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person. If he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody. (Emphasis supplied)

24. The above principle has been reiterated from time to time thereafter.

25. Section 389 of the Code expressly and specifically deals with suspension of sentence pending appeal and release of appellant on bail. It states :

389. Suspension of sentence pending the appeal; release of appellant on bail :- (1) Pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall –

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

26. Bare reading of the above provision makes it clear that during the pendency of appeal, an appellate Court is empowered to suspend sentence on the appellant by releasing him on bail. Such action, however, can be taken only after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for ten years or more and after recording reasons in writing.

27. Mr. Jethmalani, relying on the decisions in Kashmira Singh v. State of Punjab (1977) 4 SCC 291; Babu Singh and Ors. v. State of U.P., (1978) 1 SCC 579; Shailendra Kumar v. State of Delhi, (2000) 4 SCC 178 : 2000 (1) JT (SC) 184, and other cases, submitted that one of the factors which weighed with this Court in granting suspension of sentence and releasing the applicant on bail is that in case of acquittal by the trial Court and conviction by the appellate Court, hearing of appeal takes long time and the applicant has to remain in jail.

28. As observed in those cases, the practice of not releasing a person on bail who had been sentenced for imprisonment for life under S. 302, I.P.C. was that the appeal was likely to be heard in near future. But if such appeal would not be heard for long and not disposed of within a ‘measurable distance of time,’ it would not be in the interest of justice to keep such person in jail for a number of years and it would be appropriate if the power under S. 389 of the Code is exercised in favour the applicant.

29. In Kashmira Singh, this Court stated :

“Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S. 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : “We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?” What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.” (Emphasis supplied)

30. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to been ‘innocent person’ until the final decision is recorded by the superior Court in his favour.

32. In the above cases, it has been observed that once a person has been convicted, normally, the appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vinay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under S. 302, I.P.C., the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

33. In Hasmat, this Court stated :

“6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of S. 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he is released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant, aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.” (Emphasis supplied)

34. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

35. On the facts and in the circumstances of the case, in our considered opinion, this is, not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant-accused for the offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.

36. Before parting with the matter, we may clarify that we may not be understood to have expressed any opinion on merits of the matter one way or the other and all the observations made by us hereinabove should be taken as confined to dealing with the prayer of the applicant-appellant under Section 389 of the Code. As and when the main matter i.e. criminal appeal will come up for hearing, it will be decided on its own merits without being inhibited or influenced by the observations in this order.

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and sope for premeditation and calculation.

When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self control. But, if his version is true—for the purpose of this argument we shall accept that what he has said is true—it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat went straight to the bed room of Ahuja and shot him dead. Between 1.30 p.m., when he left his house, and 4.20 p.m. when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one.

The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to Section 300 of the Indian Penal Code.

Jury trial—Misdirection—Inadmissible evidence—Failure of Judge to tell the Jury that such evidence was not admissible—It amounts to clear misdirection affecting the verdict of Jury.

Jury trial—Misdirection—Existence of direct evidence—Direction by judge to apply rule of circumstantial evidence—Grave miscarriage of justice affecting the correctness of verdict.

Jury trial—Misdirection—Failure to refer to important document which were read to the Jury at different stages of trial—Failure to put the contents of documents before Jury amounts to clear misdirection affecting the verdict of Jury.

Subba Rao, J—This appeal by special leave arises out of the judgment of the Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.

2. This appeal presents the common place problem of an alleged murder by an enraged husband of a paramour of his wife:but it aroused considerable interest in the public mind by reason of the publicity it received and the important constitutional point it had given rise to at the time of its admission.

3. The appellant, was charged under S. 302 as well as under S. 304, Part I, of the Indian Penal Code and was tried by the Sessions Judge, Greater Bombay, with the aid of a special Jury. The jury brought in a verdict of “not guilty” by 8:1 under both the sections ; but the Sessions Judge did not agree with the verdict of the jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having regard to the evidence, bring in such a verdict. The learned Sessions Judge submitted the case under S. 307 of the Code of Criminal Procedure to the Bombay High Court after recording the grounds for his opinion. The said reference was heard by a division bench of the said High Court consisting of Shelat and Naik, JJ.) – The two learned Judges gave separate judgments, but agreed in holding that the accused was guilty of the offence of murder under S. 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to the conclusion that the accused was clearly guilty of the offence of murder ; alternatively, he expressed the view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weight of evidence. Naik J., preferred to base his conclusion on the alternative ground, namely, that no reasonable body of persons could have come to the conclusion arrived at by the jury. Both the learned Judges agreed that no case had been made out to reduce the offence from murder to culpable homicide not amounting to murder. The present appeal has been preferred against the said conviction and sentence.

4. The case of the prosecution may be stated thus:The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”. ‘He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three children by the marriage, a boy aged 9 1/2 years, a girl aged 5 1/2 years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigencies of service of Nanavati. Finally, they shifted to Bombay. In the same city the deceased Ahuja was doing business in automobiles and was residing along with his sister, in a building called ‘Shreyas” till 1957 and thereafter in another building called “Jivan Jyot” in Setalvad Road. In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which ‘culminated in illicit intimacy between them. On April 27,1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja entered his bed room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he was committed to the Sessions for facing a charge under S. 302 of the Indian Penal Code.

5. The defence version, as disclosed in the statement made by the accused before the Sessions Court under S. 342 of the Code of Criminal Procedure and his deposition in the said Court, may be briefly, stated:The accused was away with his ship from April 6, 1959, to April 18, 1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar for about three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and after a few days his brother and his wife left them. After they had left, the accused noticed that his wife was behaving strangely and was not responsive or affectionate to him. When questioned, she used to evade the issue. At noon on April 27,1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, when she seemed to go tense and unresponsive. After lunch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not to go to Ahuja’s house as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, dropped them there and promised to come and pick them up at 6 p. m. when the show ended, He then drove his car to his ship, as he wanted to get medicine for his sick dog ; he represented to the authorities in the ship that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges, and (sic) put it inside a brown envelope. Then he drove his car to Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the door bell, and when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-room and shut the door behind him. He also carried with him the envelope containing the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted, “Am I to marry every woman I sleep with?” The accused became enraged, put the envelope containing the revolver on a cabinet nearby, and threatened to thrash the deceased. The deceased made a sudden move to grasp at the envelope, when the accused whipped out his revolver and told him to get back. A struggle ensued between the two and during that struggle two shots went off accidentally and hit Ahuja resulting in his death. After the shooting the accused went back to his car and drove it to the police station where he surrendered himself. This is broadly, omitting the details, the case of the defence.

6. It would be convenient to dispose of at the outset the questions of law raised in this case.

7. Mr. G. S. Pathak, learned counsel for the accused, raised before us the following points ; (1) Under S. 307 of the Code of Criminal Procedure, the High Court should decide whether a reference made by a sessions Judge was competent only on a perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not. (2) Under S. 307 (3) of the said Code, the High Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made by the Sessions Judge. (3) There were no misdirections at all in the charge made by the Sessions Judge, and indeed his charge was fair to the prosecution as well as to the accused. (4) The verdict of the jury was not perverse and it was such that a reasonable body of persons could arrive at it on the evidence placed before them. (5) In any view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he had committed an offence, it would not be murder but only culpable homicide not amounting to murder.

8. Mr. Pathak elaborates his point under the first heading thus:Under S. 307 of the Code of Criminal Procedure, the High court deals with the reference in two stages. In the first stage, the High Court has to consider, on the basis of the referring order whether a reasonable body of persons could not have reached the conclusion arrived at by the jury ; and, if it is of the view that such a only could have come to that opinion, the reference shall be rejected as incompetent. At this stage, the High Court cannot travel beyond the order of reference, but shall confine itself only to the reasons given by the Sessions Judge. If, on a consideration of the said reasons, it is of the view that no reasonable body of persons could have come to that conclusion, it will then have to consider the entire evidence to ascertain whether the verdict of the jury is unreasonable. If the High Court holds that the verdict of the jury is not unreasonable, in the case of a verdict of “not guilty”, the High Court acquits the accused, and in the case where the verdict is one of “guilty” it convicts the accused. In case the High Court holds that the verdict of “not guilty”, is unreasonable it refers back the case to the Sessions Judge, who convicts the accused ; thereafter the accused will have a right of appeal wherein he can attack the validity of his conviction on the ground that there were misdirections in the charge to the jury. So too, in the case of a verdict of guilty by the jury, the High Court, if it holds that the verdict is unreasonable, remits the matter to the Sessions Judge, who acquits the accused, and the State, in an appeal against that acquittal, may question the correctness of the said acquittal on the ground that the charge to the jury was vitiated by misdirections. In short, the argument may be put in three propositions, namely, (i) the High Court rejects the reference as incompetent, if on the face of the reference the verdict of the jury does not appear to be unreasonable, (ii) if the reference is competent, the High Court can consider the evidence to come to a definite conclusion whether the verdict is unreasonable or not, and (iii) the High Court has no power under S. 307 of the Code of Criminal Procedure to set aside the verdict of the jury on the ground that it is vitiated by misdirections in the charge to the jury.

9. The question raised turns upon the construction of the relevant provisions of the Code of Criminal Procedure. The said Code contains two fascicule of sections dealing with two different situations. Under S. 268 of the Code, “All trials before a Court of Session shall be either by jury, or by the Judge himself.” Under S. 297 thereof:

“In cases tried by jury, when the case for the defence and the prosecutor’s reply, if any, are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided …………….,..”

Section 298, among others, imposes a duty on a judge to decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to be proved, and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties. and to decide upon all matters of fact which it is necessary to prove in order to enable evidence of particular matters to be given. It is the duty of the jury,

“to decide which view of the facts is true and then to return the verdict which under such view ought, according to the directions of the Judge, to be returned.”

After the charge to the jury, the jury retire to consider their verdict and, after due consideration, the foreman of the jury informs the Judge what is their verdict or what is the verdict of the majority of the jurors. Where the Judge does not think it necessary to disagree with the verdict of the jurors or of the majority of them he gives judgment accordingly. If the accused is acquitted, the Judge shall record a verdict of acquittal ; if the accused is convicted, the Judge shall pass sentence on him according to law. In the case of conviction, there is a right of appeal under S. 410 of the Code, and in a case of acquittal, under S. 417 of the Code, to the High Court. But S. 418 of the Code provides:

“ (1) An appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury, in which case the appeal shall lie on a matter of law only.”

Sub-section (2) thereof provides for a case of a person sentenced to death, with which we are not now concerned. Section 423 confers certain powers on an appellate Court in the matter of disposing of an appeal, such as calling for the record, hearing of the pleaders, and passing appropriate orders therein. But sub-s. (2) of S. 423 says:

“Nothing herein contained shall authorise the Court to alter or reverse the verdict of the jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.”

It may be noticed at this stage, as it will be relevant in considering one of the arguments raised in this case, that sub-sec. (2) does not confer any power on an appellate court, but only saves the limitation on the jurisdiction of an appellate court imposed under S. 418 of the Code. It is, therefore, clear that in an appeal against conviction or acquittal in a jury trial, the said appeal is confined only to a matter of law.

10. The Code of Criminal Procedure also provides for a different situation. The Sessions Judge may not agree with the verdict of the jurors or the majority of them ; and in that event S. 307 provides for a machinery to meet that situation. As the argument mainly turns upon the interpretation of the provisions of this section, it will be convenient to read the relevant clauses thereof. Section 307: (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which any accused person has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, and in such case, if the accused is further charged under the provisions of Section 310, shall proceed to try him on such charge as if such verdict had been one of conviction.

(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

This section is a clear departure from the English law. There are good reasons for its enactment. Trial by jury outside the Presidency Towns was first introduced in the Code of Criminal Procedure of 1861, and the verdict of the jury was, subject to re-trial on certain events, final and conclusive. This led to miscarriage of justice through jurors returning erroneous verdicts due to ignorance and inexperience. The working of the system was reviewed in 1872, by a Committee appointed for that purpose and on the basis of the report of the said Committee, S. 262 was introduced in the Code of 1872. Under that section, where there was difference of view between the jurors and the judge, the Judge was empowered to refer the case to the High Court in the ends of justice, and the High Court dealt with the matter as an appeal. But in 1882 the section was amended and under the amended section the condition for reference was that the Court should differ from the jury completely; but in the Code of 1893 (sic) the section was amended practically in terms as it now appears in the code, the history of the legislation shows that the section was intended as a safeguard against erroneous verdicts of inexperienced jurors and also indicates the clear intention of the Legislature to confer on a High Court a separate jurisdiction, which for convenience may be described as “reference jurisdiction”. Section 307 of the Code of Criminal Procedure, while continuing the benefits of the jury system to persons tried by a Court of Session, also guards against any possible injustice, having regard to the conditions obtaining in India. It is, therefore clear that there is an essential difference between the scope of the jurisdiction of the High Court in disposing of an appeal against a conviction or acquittal, as the case may be, in a jury trial, and that in a case submitted by the Sessions Judge when he differs from the verdict of the jury:in the former the acceptance of the verdict of the jury by the Sessions Judge is considered to be sufficient guarantee against its perversity and therefore an appeal is provided only on questions of law , whereas in the latter the absence of such agreement necessitated the conferment of a larger power on the High Court in the matter; of interfering with the verdict of the jury.

11. Under S. 307 (1) of the Code, the obligation cast upon the Sessions Judge to submit the case to the High Court is made subject to two conditions, namely, (1) the Judge shall disagree with the verdict of the jurors, and (2) he is clearly of the opinion that it is necessary in the ends of justice to submit the case to the High Court. If the two conditions are complied with, he shall submit the case, recording the grounds of his opinion. The words “for the ends of justice” are comprehensive, and coupled with the words “is clearly of opinion”, they give the Judge a discretion to enable him to exercise his power under different situations, the only criterion being his clear opinion that the reference is in the ends of justice. But the judicial Committee, in Ramanugrah Singh vs. Emperor, 73 Ind App 174 at pp. 182, 186 construed the words “necessary for the ends of justice” and laid down that the words mean that the Judge shall be of the opinion that the verdict of the jury is one which no reasonable body of men could have reached on the evidence. Having regard to that interpretation, it may be held that the second condition for reference is that the Judge shall be clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence. It follows that if a Judge differs from the jury and is clearly of such an opinion, he shall submit the case to the High Court recording the grounds of his opinion. In that event, the said reference is clearly competent. If, on the other hand, the case submitted to the High Court does not ex facie show that the said two conditions have been complied with by the Judge, it is incompetent. The question of competency of the reference does not depend upon the question whether the Judge is justified in differing from the jury or forming such an opinion on the verdict of the jury. The argument that though the sessions Judge has complied with the conditions necessary for making a reference, the High Court shall reject the reference as incompetent without going into the evidence if the reasons given do not sustain the view expressed by the Sessions Judge, is not supported by the provisions of sub-see. (1) of S. 307 of the Code. But it is said that it is borne out by the decision of the Judicial committee in Ramanugrah Singh’s case (supra). In that cases the judicial Committee relied upon the words “ends of justice” and held that the verdict was one which no reasonable body of men could have reached on the evidence and further laid down that the requirements of the ends of justice must be the determining factor both for the Sessions Judge in making the reference and for the High Court in disposing of it. The Judicial Committee observed:

“In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial court, and if the jury taken one view of the evidence and the judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact. In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury. If however the High Court considers that on the evidence no reasonable body of men could have reached the conclusion arrived at by and the jury, then the reference was justified and the ends of justice require that the verdict be disregarded.”

The judicial committee proceeded to state:

“In their Lordships opinion had the High Court approached the reference on the right lines and given due weight to the opinion of the jury they would have been bound to hold than the reference was not justified and that the ends of justice did not require any interference with the verdict of the jury” Emphasis is laid on the word “justified’, and it is argued that the High Court should reject the reference as incompetent if the reasons given by the Sessions Judge in the statement of case do not support his view that it is necessary in the ends of justice to refer the case to the High Court. The Judicial Committee does not lay down any such proposition. There, the jury brought in a verdict of “guilty” under S. 302, Indian Penal Code. The Sessions Judge differed from the jury and made a reference to the High Court. The High Court accepted the reference and convicted the accused and sentenced him to transportation for life. The Judicial Committee held, on the facts of that case, that the High Court was not justified in the ends of justice to interfere with the verdict of the jury. They were not dealing with the question of competency of a reference but only with that of the justification of the Sessions Judge in making the reference, and the High Court in accepting it. It was also not considering a case of any disposal of the reference by the High Court on the basis of the reasons given in the reference, but were dealing with a case where the High Court on a consideration of the entire evidence accepted the reference, and the Judicial Committee held on the evidence that there was no justification for the ends of justice to accept it. This decision, therefore, has no bearing on the competency of a reference under S. 307 (1) of the Code of Criminal Procedure.

12. Now, coming to sub-sec. (3) of S. 307 of the Code, it is in two parts. The first part says that the High Court may exercise any of the powers which it may exercise in an appeal. Under the second part, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, the High Court shall acquit or convict the accused. These parts are combined by the expression” and subject thereto”. The words “subject thereto” were added to the section by an amendment in 1896. This expression gave rise to conflict of opinion and it is conceded that it lacks clarity. That may be due to the fact that piecemeal amendments have been made to the section from time to time to meet certain difficulties. But we cannot ignore the expression, but we must give it a reasonable construction consistent with the intention of the Legislature in enacting the said section. Under the second part of the section, special jurisdiction to decide a case referred to it is conferred on the High Court. It also defines the scope of its jurisdiction and its limitations. The High Court can acquit or convict an accused of an offence of which the jury could have convicted him, and also pass such sentence as might have been passed by the Court of Session. But before doing so, it shall consider the entire evidence and give due weight to the opinions of the Sessions Judge and the jury. The second part does not confer on the High Court any incidental procedural powers necessary to exercise the said jurisdiction in a case submitted to it, for it is neither an appeal nor a revision. The procedural powers are conferred on the High Court under the first part. The first part enables the High Court to exercise any of the powers which it may exercise in an appeal, for without such powers it cannot exercise its jurisdiction effectively. But the expression “subject to” indicates that in exercise of its jurisdiction in the manner indicated by the second part, it can call in aid only any of the powers of an appellate court, but cannot invoke a power other than that conferred on an appellate court. The limitation on the second part implied in the expression “subject thereto” must be confined to the area of the procedural powers conferred on an appellate court. If that be the construction, the question arises, how to reconcile the provisions of S. 423 (2) with those of S. 307 of the Code ? Under sub-sec. (2) of S. 423:

“Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.”

It may be argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him, the High Court, in exercise of its jurisdiction under S. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (1) of S. 423 of the Code does not confer any power on the High Court; it only restates the scope of the limited jurisdiction conferred on the court under S. 418 of the Code, and that could not have any application to the special jurisdiction conferred on the High Court under S. 307. That apart, a perusal of the provisions of S. 423 (1) indicates that there are powers conferred on an appellate court which cannot possibly be exercised by courts disposing of a reference under S. 307 of the Code, namely, the power to order commitment etc. Further S. 423 (1) (a) and (b) speak of conviction, acquittal, finding and sentence which are wholly inappropriate to verdict of a jury. Therefore, a reasonable construction will be that the High Court can exercise any of the powers conferred on an appellate court under S. 423 or under other sections of the Code which are appropriate to the disposal of a reference under S. 307. The object is to prevent miscarriage of justice by the jurors returning erroneous or perverse verdict. The opposite construction defeats this purpose, for it equates the jurisdiction conferred under S. 307 with that of an appellate court in a jury trial. That construction would enable the High Court to correct an erroneous verdict of a jury, only in a case of misdirection by the Judge but not in a case of fair and good charge. This result effaces the distinction between the two types of jurisdiction. Indeed, learned counsel for the appellant has taken a contrary position. He would say that the High Court under S. 307 (3) could not interfere with the verdict of the jury on the ground that there were misdirections in the charge to the jury. This argument is built upon the hypothesis that under the Code of Criminal Procedure there is a clear demarcation of the functions of the jury and the judge, the jury dealing with facts and the judge with law, and therefore the High Court could set aside a verdict on the ground of misdirection only when an appeal comes to it under S. 418 and could only interfere with the verdict of the jury for the ends of justice, as interpreted by the Privy Council, when the matter comes to it under S. 307 (3). If this interpretation be accepted, we would be attributing to the Legislature an intention to introduce a circuitous method and confusion in the disposal of criminal cases. The following illustration will demonstrate the illogical result of the argument. The jury brings in a verdict of “not guilty” on the basis of a charge replete with misdirections; the Judge disagrees with that verdict and states the case to the High Court; the High Court holds that the said verdict is not erroneous on the basis of the charge, but is of the opinion that the verdict is erroneous because of the misdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference; thereafter, the Judge has to accept the verdict and acquit the accused; the prosecution then will have to prefer an appeal under S. 417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of the Legislature. Take the converse case. On similar facts, the jury brings in a verdict of “guilty”; the Judge disagrees with the jury and makes a reference to the High Court; even though it finds misdirections in the charge to the jury, the High Court cannot set aside the conviction but must reject the reference; and after the conviction, the accused may prefer an appeal to the High Court. This procedure will introduce confusion in jury trials, introduce multiplicity of proceedings, and attribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of S. 307 (3) of the Code. The said sub-section enables the High Court to consider the entire evidence, to give due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-section are “giving due weight to the opinions of the Sessions Judge and the jury”. The High Court shall give weight to the verdict of the jury; but the weight to be given to a verdict depends upon many circumstances—it may be one that no reasonable body of persons could come to; it may be a perverse verdict; it may be a divided verdict and may not carry the same weight as the united one does; it may be vitiated by misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge? That apart the High Court has to give due weight to the opinion of the Sessions Judge. The reasons for the opinion of the Sessions Judge are disclosed in the case submitted by him to the High Court. If the case stated by the Sessions Judge discloses that there must have been misdirections in the charge, how can the High Court ignore them in giving due weight to his opinion? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-sec. (3) of S. 307 of the Code:it can acquit or convict an accused. It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and the jury; it combines in itself the functions of the Judge and jury; and it is entitled to come to its independent opinion. The phraseology used does not admit of an expressed or implied limitation on the jurisdiction of the High Court.

13. It appears to us that the Legislature designedly conferred a larger power on the High Court under S. 307 (3) of the Code than that conferred under S. 418 thereof, as in the former case the Sessions Judge differs from the jury while in the latter he agrees with the jury.

14. The decisions cited at the Bar do not in any way sustain the narrow construction sought to be placed by learned counsel on S. 307 of the Code. In Ramanugrah Singh’s case (supra) which has been referred to earlier, the Judicial Committee described the wide amplitude of the power of the High Court in the following terms:

“The Court must consider the whole case and give true weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accused”.

The Judicial Committee took care to observe:

“. . . . . .. the test of reasonableness on the part of the jury may not be conclusive in every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidence placed before the High Court the verdict is shown to be wrong. In such a case the ends of justice would require the verdict to be set aside though the jury had not acted unreasonably.”

This passage indicates that the Judicial Committee did not purport to lay down exhaustively the circumstances under which the High Court could interfere under the said sub-section with the verdict of the jury. This Court in Akhlakali Hayatalli vs. State of Bombay, (1954) SCR 435 at p. 438 accepted the view of the Judicial Committee on the construction of S. 307 of the Code of Criminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as the only guide in interfering with the verdict of the jury:

“The charge was not attacked before the High Court nor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict.”

This passage recognizes the possibility of interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too, the decision of this Court in Ramyed Rai vs. State of Bihar, (1957) SCR 273; ( (S) AIR 1957 SC 373) assumes that such an interference is permissible if the verdict of the jury was vitiated by misdirections. In that case, the appellants were charged under Ss. 435 and 436 of the Indian Penal Code and were tried by a jury, who returned a majority verdict of “guilty”. The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference the counsel for the appellants contended that the charge to the jury was defective, and did not place the entire evidence before the Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High Court to consider the entire evidence and the charge as framed and placed before the jury and to come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the appellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of S, 307 of the Code of Criminal Procedure. This decision also assumes that a High Court could under S. 307 (3) of the Code of Criminal Procedure interfere with the verdict of the jury, if there are misdirections in the charge and holds that in such a case it is incumbent on the court to consider the entire evidence and to come to its own conclusion, after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath vs. State of West Bengal, (1958) SCR 960 held that where the Sessions Judge disagreed with the verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it, There, the jury returned a verdict of “guilty” in respect of some charges and “not guilty” in respect of others. But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated subsec. (2) of S. 307 the Code of Criminal Procedure and also had the effect of preventing the High Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-see, (3) of S, 307 of the said Code. Imam, J., observed that the reference in that case was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-see. (3) of S. 307 of the Code, because the very foundation of the exercise of that power was lacking, the reference being incompetent. This Court held that the reference was incompetent because the Sessions Judge contravened the express. provisions of sub -sec. (2) of S. 307 of the Code, for under that sub-section whenever a Judge submits a case under that section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-see. (2) of S. 307 of the Code and therefore the use of the word ‘incompetent’ may not be inappropriate. The decision of a division bench of the Patna High Court in Emperor vs. Ramadhar Kurmi AIR 1948 Pat 79 at p. 84 may usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when it is vitiated by serious misdirections and non-directions. Das, J., observed:

“Where, however, there is misdirection the principle embodied in S. 587 would apply and if the verdict is erroneous owing to the misdirection, it can have no weight on a reference under S, 307 as on an appeal.” It is not necessary to multiply decisions. The’ foregoing discussion may be summarised in the form of the following propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence; after reaching that opinion, in the case submitted by him he shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not-been complied with or that the reasons for the opinion are not recorded, the High Court may reject the reference as incompetent:the High Court can also reject it if the Sessions Judge, has contravened sub-s. (2) of S. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with the verdict of the jury and that he is clearly of the opinion that no reasonable body of men could have reached the conclusion arrived at by the jury, and he discloses his reasons for the opinion, sub-sec. (3) of S. 307 of the Code comes into play, and thereafter the High Court has an obligation to discharge its duty imposed thereunder. (4) Under sub-see. (3) of S. 307 of the Code the High Court has to consider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused. (5) The High Court may deal with the reference in two ways, namely, (i) if there are mis-directions vitiating the verdict, it may, after going into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High Court can interfere with the verdict of the jury if it finds the verdict “perverse in the sense of being unreasonable”, “manifestly wrong”, or “against the weight of evidence’, or, in other words, if the verdict is such that no reasonable body of men could have reached on the evidence (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to the occasion, such as issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We, therefore, reject the first contention of learned counsel for the appellant. 15. The next question is whether the High Court was right in holding that there were misdirections in the charge to the jury. Misdirection is something which a judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection or non-direction is not in itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice.

16. In Mushak Hussein vs. State of Bombay, (1953) SCR 809 this Court laid down ;

“Unless therefore it is established in a case that there has been a serious misdirection by the judge, in charging the jury which has occasioned a failure of justice and has misled the jury in giving its verdict, the verdict of the jury cannot be set aside.” This view has been restated by this Court in a recent decision viz., Nagindra Bala Mitra. vs. Sunil Chandra Roy, (1960) 3 SCR 1.

17. The High Court in its judgment referred to as many as six misdirections in the charge to the jury, which in its view vitiated the verdict, and it also stated that there were many others. Learned counsel for the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all, or, even if they were, they did not in any way affect the correctness of the verdict.

18. We shall now take the first and the third misdirections pointed out by Shelat, J. as they are intimately connected with each other. They are really omissions. The first omission is that throughout the entire charge there is no reference to S. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the Sessions Judge failed to explain to the jury the legal ingredients of S. 80 of the I.P.C:, and also failed to direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged omissions, it is necessary to read the relevant provisions. Section 80 of the Indian Penal Code.

“Nothing is an offence which is done by accident or misfortune, and without any Criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”

Evidence Act.

Section 103:The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person,”

Section 105:”When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of1860) or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

Section 3:”In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context ;-

A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist,”

Section 4:, . . . . .. . . . . . . . . . … ….. “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved,”

The legal impact of the said provisions on the question of burden of proof may be stated thus:In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, S. 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased ; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in S. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of S. 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein, This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged:that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S.105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations ; (I) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see Ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence ; (see S. 80 of the Indian Penal Code), In the first case the burden of the proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused, In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of S, 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution:the accused against whom a presumption is drawn under S. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in S. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of S. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of S. 300, Indian Penal Code or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to establish to bring his case within the terms of S. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence:indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.

19. The English decisions relied upon by Mr. Pathak, learned counsel for the accused, may not be of much help in construing the provisions of S. 105 of the Indian Evidence Act. We would, therefore, prefer not to refer to them, except to one of the leading decisions on the subject, namely, Wolmington vs. Diretor of Public Prosecutions 1935 AC 462 at p. 481. The headnote in that decision gives its gist, and it reads:

“In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

In the course of the judgment Viscount Sankey. L. C., speaking for the House, made the following observations:

“But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt ; he is not bound to satisfy the jury of his innocence . . . . . . . . . . . . . . . .. . . . . . Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.”

These passages are not in conflict with the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of S. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to S. 80 of the Indian Penal Code, but Viscount Sankey, L.C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find in S. 105 of the Indian Evidence Act. Reliance is placed by learned counsel for the accused on the decision of the Privy Council in Attygalle vs. The King, AIR 1936 PC 169 at p. 170 in support of the contention that notwithstanding S. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning of S. 80 of the Indian Penal Code is on the prosecution. In that case, two persons were prosecuted, one for performing an illegal operation and the other for abetting him in that crime. Under S. 106 of the Ordinance 14 of 1895 in the Ceylon Code, which corresponds to S. 106 of the Indian Evidence Act, it was enacted that when any fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said:.

“Miss Maye – that is the person upon whom the operation was alleged to have been performed -was unconscious and what took place in that room that three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact, the law says, is upon him, namely that no criminal operation look place but what took place was this and this speculum examination.”

The Judicial Committee pointed out:

“It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the accused person had to discharge. The summing-up goes on to explain the presumption of innocence in favour of accused persons, but it again reiterates that the burden of proving that no criminal operation took place is on the two accused who were there.”

The said observations do not support the contention of learned counsel. Section 106 of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accused a burden to prove that he had not committed any crime ; nor did it deal with any exception similar to that provided under S. 80 of the Indian Penal Code. It has no bearing on the construction of S. 105 of the Indian Evidence Act. The decisions of this Court in State of Madras vs. A. Vaidyanatha Iyer (1958) SCR 580, which deals with S. 4 of the Prevention of Corruption Act, 1947, and C. S. D. Swamy vs. The State (1960) 1 SCR 461, which considers the scope of S. 5 (3) of the said Act are examples of a statute throwing the burden of proving and even of establishing some of the ingredients of the offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the absence of the ingredients of the offence under certain circumstances was on the accused. Further citations are unnecessary as, in our view, the terms of S. 105 of the Evidence Act are clear and unambiguous.

20. Mr. Pathak contends that the accused did not rely upon any exception within the meaning of S. 80 of the Indian Penal Code and that his plea all through has been only that the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and by the accused, the burden of proof became only academic and the jury was in a position to come to one conclusion or other on the evidence irrespective of the burden of proof. Before the Sessions Judge the accused certainly relied upon S. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in his charge to the jury. In paragraph 6 of the charge, the learned Sessions Judge stated:

“Before I proceed further I have to point out another section which is S. 80. You know by now that the defence of the accused is that the firing of the revolver was a matter of accident during a struggle for possession of the revolver. A struggle or a fight by itself does not exempt a person. It is the accident which exempts a person from criminal liability because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may overpower the victim and kill the deceased so that a struggle or a fight by itself does not exempt an assailant. It is only an accident, whether it is in struggle or a fight or otherwise which can exempt an assailant. It is only an accident, whether it is in a struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to S. 80 which says:. . . . . . . . . (S. 80 read). You know that there are several provisions which are to be satisfied before the benefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, there should be no criminal intention or knowledge in the doing of that act, that act itself must be done in a lawful manner and it must be done by lawful means and further in doing of it, you must do it with proper care and caution. In this connection, therefore, even while considering the case of accident, you will have to consider all the factors, which might emerge from the evidence before you, whether it was proper care and caution to take a loaded revolver without a safety catch to the residence of the person with whom you were going to talk and if you do not get an honourable answer you were prepared to thrash him. You have also to consider this further circumstance whether it is an act with proper care and caution to keep that loaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine as judges of fact, whether the act of the accused in this case can be said to be an act which was lawfully done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case.”

In this paragraph the learned Sessions Judge mixed up the ingredients of the offence with those of the exception. He did not place before the jury the distinction in the matter of burden of proof between the ingredients of the offence and those of the exception. He did not tell the jury that where the accused relied upon the exception embodied in S. 80 of the Indian Penal Code, there was a statutory presumption against him and the burden of proof was on him to rebut that presumption. What is more, he told the jury that it was for them to decide whether the act of the accused in the case could be said to be an act which was lawfully done in a lawful manner with proper care and caution. This was in effect abdicating his functions in favour of the jury. He should have explained to them the implications of the terms “lawful act”, “lawful manner”, “lawful means” and “with proper care and caution” and pointed out to them the application of the said legal terminology to the acts of the case. On such a charge as in the present case, it was not possible for the jury, who were laymen, to know the exact scope of the defence and also the circumstances under which the plea under S. 80 of the Indian Penal Code was made out. They would not have also known that if S. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burden of proof to rebut the presumption was on him. In such circumstances, we cannot predicate that the jury understood the legal implications of S. 80 of the Indian Penal Code and the scope of the burden of proof under S. 105 of the Evidence Act, and gave their verdict correctly. Nor can we say that the jury understood the distinction between the ingredients of the offence and the circumstances that attract S.80 of the Indian Penal Code and the impact of the proof of some of the said circumstances on the proof of the ingredients of the offence. The said omissions therefore are very grave omissions which certainly vitiated the verdict of the jury.

21. The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks:

“Thus the question whether a confession of adultery by the wife of the accused to him amounts to grave and sudden provocation or not was a question of law. In my view, the learned Sessions Judge was in error in telling the jury that the entire question was one of fact for them to decide. It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted to grave and sudden provocation as against the deceased Ahuja which on the authorities referred to hereinabove it was not. He was therefore in error in placing this alternative case to the jury for their determination instead of deciding it himself.” The misdirection according to the learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden confession of the wife to the accused did not in law amount to sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion that the said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there is an essential difference between the law of England and that of India in the matter of the charge to the jury in respect of grave and sudden provocation. The House of Lords in Holmes vs. Director of Public Prosecution, 1946 AC 588 at p. 597 laid down the law in England thus:

“If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of selfcontrol, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.”

Viscount Simon brought out the distinction between the respective duties of the judge and the jury succinctly by formulating the following questions:

“The distinction, therefore, is between asking ‘Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did ?’ (which is for the judge to rule), and, assuming that the judges ruling is in the affirmative, asking the jury:’Do you consider that, on the facts as you find them from the evidence, the provocation was in fact enough to lead a reasonable person to do what the accused did ?’ and, if so, ‘Did the accused act under the stress of such provocation ?”

So far as England is concerned the judgment of the House of Lords is the last word on the subject till it is statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show that the said observations did not receive their approval.

22. But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutory provisions, and that under the explanation to Exception I to S. 300 of the I. P. C., the question whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is one of fact, and therefore, unlike in England, in India both the aforesaid questions fall entirely within the scope of the jury and they are for them to decide. To put it in other words, whether a reasonable person in the circumstances of a particular case committed the offence under provocation which was grave and sudden is a question of fact for the jury to decide. There is force in this argument, but it is not necessary to express our final opinion thereon, as the learned Attorney-General has conceded that there was no misdirection in regard to this matter.

23. The fourth misdirection found by the High Court is that the learned Sessions Judge told the jury that the prosecution relied on the circumstantial evidence and asked them to apply the stringent rule of burden of proof applicable to such cases, whereas in fact there was direct evidence of Puransingh in the shape of extra-judicial confession. In paragraph 8 of the charge the Sessions Judge said:

“In this case the prosecution relies on what is called circumstantial evidence that is to say there is no witness who can say that he saw the accused actually shooting and killing deceased. There are no direct witnesses, direct witnesses as they are called, of the event in question. Prosecution relies on certain circumstances from which they ask you to deduce an inference that it must be the accused and only the accused who must have committed this crime. That is called circumstantial evidence. It is not that prosecution cannot rely on circumstantial evidence because it is not always the case or generally the case that people who go out to commit crime will also take witnesses with them. So that it may be that in some cases the prosecution may have to rely on circumstantial evidence. Now when you are dealing with circumstantial evidence you will, bear in mind certain principles, namely, that the facts on which the prosecution relies must be fully established. They must be fully and firmly established. These facts must lead to one conclusion and one only namely the guilt of the accused and lastly it must exclude all reasonable hypothesis consistent with the innocence of the accused, all reasonable hypothesis consistent with the innocence of the accused should be excluded. In other words you must come to the conclusion by all the human probability, it must be the accused and the accused only who must have committed this crime. That is the standard of proof in a case resting on circumstantial evidence.”

Again in paragraph 11 the learned Sessions Judge observed that the jury were dealing with circumstantial evidence and graphically stated ;

“It is like this, take a word, split it up into letters, the letters may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case.”

In paragraph 18 of the charge, the learned Sessions Judge dealt with the evidence of Puransingh separately and told the jury that if his evidence was believed, it was one of the best forms of evidence against the man who made the admission and that if they accepted that evidence, then the story of the defence that it was an accident would become untenable. Finally he summarized all the circumstances on which the prosecution relied in paragraph 34 and one of the circumstances mentioned was the extra-judicial confession made to Puransingh. In that paragraph the learned Sessions Judge observed as follows:

“I will now summarize the circumstances on which the prosecution relies in this case. Consider whether the circumstances are established beyond all reasonable doubt. In this case you are dealing with circumstantial evidence and therefore consider whether they are fully and firmly established and consider whether they lead to one conclusion and only one conclusion that it is the accused alone who must have shot the deceased and further consider that it leaves no room for any reasonable hypothesis consistent with the innocence of the accused regard being had to all the circumstances in the case and the conclusion that you have to come to should be of this nature and by all human probability it must be the accused and the accused alone who must have committed this crime.”

Finally the learned Sessions Judge told them:

“If on the other hand you think that the circumstances on which the prosecution relies are fully and firmly established, that they lead to one and the only conclusion and one only, of the guilt of the accused and that they exclude all reasonable hypothesis of the innocence of the accused then and in that case it will be your duty which you are bound by the oath to bring verdict accordingly without any fear or any favour and without regard being had to any consequence that this verdict might lead to.”

Mr. Pathak contends that the learned Sessions Judge dealt with the evidence in two parts, in one part he explained to the jury the well settled rule of approach to circumstantial evidence, whereas in another part he clearly and definitely pointed to the jury the great evidentiary value of the extra-judicial confession of guilt by the accused made to Puransingh, if that was believed by them. He, therefore, argues that there was no scope for any confusion in the minds of the jurors in regard to their approach to the evidence or in regard to the evidentiary value of the extra-judicial confession. The argument proceeds that even if there was a misdirection it was not such as to vitiate the verdict of the jury. It is not possible to accept this argument. We have got to look at the question from the standpoint of the possible effect of the said misdirection in the charge on the jury, who are laymen. In more than one place the learned Sessions Judge pointed out that the case depended upon circumstantial evidence and that the jury should apply the rule of circumstantial evidence settled by decisions. Though at one place he emphasized upon the evidentiary value of a confession, he later on included that confession also as one of the circumstances and again directed the jury to apply the rule of circumstantial evidence. It is not disputed that the extrajudicial confession made to Puransingh is direct piece of evidence and that the stringent rule of approach to circumstantial evidence does not apply to it. If that confession was true, it cannot be disputed that the approach of the jury to the evidence would be different from that if that was excluded. It is not possible to predicate that the jury did not accept that confession and therefore applied the rule of circumstantial evidence. It may well have been that the jury accepted it and still were guided by the rule of circumstantial evidence as pointed out by the learned Sessions judge. In these circumstances we must hold agreeing with the High Court, that this is a grave misdirection affecting the correctness of the verdict.

24. The next misdirection relied upon by the High Court is the circumstance that the three letters written by Sylvia were not read to the jury by the learned Sessions Judge in his charge, and that the jury were not told of their effect on the credibility of the evidence of Sylvia and Nanavati. Shelat, J., observed in regard to this circumstance thus ;

“It cannot be gainsaid that these letters were important documents disclosing the state of mind of Mrs. Nanavati and the deceased to a certain extent. If these letters had been read in juxtaposition of Mrs. Nanavati’s evidence they would have shown that her statement that she felt that Ahuja had asked her not to see him for a month or the purpose of backing out of the intended marriage was not correct and that they had agreed not to see each other for the purpose giving her and also to him an opportunity to coolly think out the implications of such a marriage and then to make up her own mind on her own. The letters would also show that when the accused asked her, as he said in his evidence, whether Ahuja would marry her, it was not probable that she would fence that question. On the other hand, she would, in all probability, have told him that they had already decided to many. In my view, the omission to refer even once to these letters in the charge especially in view of Mrs. Nanavati’s evidence was a non-direction amounting to misdirection.”

Mr. Pathak contends that these letters were read to the jury by counsel on both sides and a reference was also made to them in the evidence of Sylvia and, therefore, the jury clearly knew the contents of the letters, and that in the circumstances the non-mention of the contents of the letters by the Sessions Judge was not a misdirection and even if it was it did not affect the verdict of the jury. In this context reliance is placed upon two English decisions, namely, R. vs. Roberts, 1942-1 All ER 187 at p. 190 and R. vs. Attfield, 1961-3 All ER 243. In the former case the appellant was prosecuted for the murder of a girl by shooting her with a service rifle and he pleaded accident as his defence. The judge in his summing-up, among other defects, omitted to refer to the evidence of certain witnesses; the jury returned a verdict of “guilty” on the charge of murder and it was accepted by the judge; it was contended that the omission to refer to the evidence of certain witnesses was a misdirection. Rejecting that plea, Humphreys, J., observed:

“The jury had the statements before them. They had the whole of the evidence before them, and they had, just before the summing up, comments upon those matters from counsel for the defence, and from counsel for the prosecution, it is incredible that they could have forgotten them or that they could have misunderstood the matter in any way, or thought, by reason of the fact that the judge did not think it necessary to refer to them, that they were not to pay attention to them. We do not think there is anything in that point at all. A judge, in summing-up, is not obliged to refer to every witness in the case, unless he thinks it necessary to do so. In saying this, the court is by no means saying that it might not have been more satisfactory if the judge had referred to the evidence of the two witnesses, seeing that he did not think it necessary to refer to some of the statements made by the accused after the occurrence. No doubt it would have been more satisfactory from the point of view of the accused. All we are saying is that we are satisfied that there was no misdirection in law on the part of the judge in omitting those statements, and it was within his discretion.”

This passage does not lay down as a proposition of law that however important certain documents or pieces of evidence may be from the standpoint of the accused or the prosecution, the judge need not refer to or explain them in his summing-up to the jury, and, if he did not, it would not amount to misdirection under any circumstances. In that case some statements made by witnesses were not specifically brought to the notice of the jury and the court held in the circumstances of that case that there was no misdirection. In the latter case the facts were simple and the evidence was short; the judge summed up the case directing the jury as to the law but did not deal with the evidence except in regard to the appellant’s character. The jury convicted the appellant. The court held that, “although in a complicated and lengthy case it was incumbent on the court to deal with the evidence in summing-up, yet where, as in the present case, the issues could be simply and clearly stated, it was not fatal defect for the evidence not to be reviewed in the summing-up.” This is also a decision on the facts of that case. That apart, we are not concerned with a simple case here but with a complicated one. This decision does not help us in deciding the point raised. Whether a particular omission by a judge to place before the jury certain evidence amounts to a misdirection or not falls to be decided on the facts of each case.

25. These letters show the exact position of Sylvia in the context of her intended marriage with Ahuja, and help to test the truthfulness or otherwise of some of the assertions made by her to Nanavati. A perusal of these letters indicates that Sylvia and Ahuja were on intimate terms, that Ahuja was willing to marry her, that they had made up their minds to marry, but agreed to keep apart for a month to consider coolly whether they really wanted to marry in view of the serious consequences involved in taking such a step. Both Nanavati and Sylvia gave evidence giving an impression that Ahuja was backing out of his promise to marry Sylvia and that was the main reason for Nanavati going to Ahuja’s flat for an explanation. If the Judge had read these letters in his charge and explained the implication of the contents thereof in relation to the evidence given by Nanavati and Sylvia, it would not have been possible to predicate whether the jury would have believed the evidence of Nanavati and Sylvia. If the marriage between them was a settled affair and if the only obstruction in the way was Nanavati, and if Nanavati had expressed his willingness to be out of the way and even to help them to marry, their evidence that Sylvia did not answer the direct question about the intentions of Ahuja to marry her, and the evidence of Nanavati that it became necessary for him to go to Ahuja’s flat to ascertain the latter’s intentions might not have been believed by the jury. It is no answer to say that the letters were read to the jury at different stages of the trial or that they might have read the letters themselves, for in a jury trial, especially where innumerable documents are filed, it is difficult for a lay jury, unless property directed, to realise the relative importance of specified documents in the context of different aspects of a case. That is why the Code of Criminal Procedure, under S. 297 thereof, imposes a duty on the Sessions Judge to charge the jury after the entire evidence is given and after counsel appearing for the accused and counsel appearing for the prosecution have addressed them. The object of the charge to the jury by the Judge is clearly to enable him to explain the law and also to place before them the facts and circumstances of the case both for and against the prosecution in order to help them in arriving at a right decision. The fact that the letters were read to the jury by the prosecution or by the counsel for the defence is not of much relevance, for they would place the evidence before the jury from different angles to induce them to accept their respective versions. That fact in itself cannot absolve the judge from his clear duty to put the contents of the letters before the jury from the correct perspective. We are in agreement with the High Court that this was a clear misdirection which might have affected the verdict of the jury.

26. The next defect pointed out by the High Court is that the Sessions Judge allowed the counsel for the accused to elicit from, the police officer, Phansalkar, what Puransingh is alleged to have stated to him orally, in order to contradict the evidence of Puransingh in the court, and the judge also dealt with the evidence so elicited in paragraph 18 of his charge to the jury. This contention cannot be fully appreciated unless some relevant facts are stated. Puransingh was examined for the prosecution as P. W. 12. He was a watchman of “Jivan Jyot”. He deposed that when the accused was leaving the compound of the said building, he asked him why he had killed Ahuja, and the accused told him that he had a quarrel with Ahuja as the latter had “connections” with his wife and therefore he killed him. At about 5-5 p.m. on April 27, 1959, this witness reported this incident to Gamdevi Police Station. On that day Phansalkar (P.W. 13) was the Station House Duty Officer of that station from 2 to 8. p.m. On the basis of the statement of Puransingh, Phansalkar went in a jeep with Puransingh to the place of the alleged offence. Puransingh said in his evidence that he told Phansalkar in the jeep what the accused had told him when he was leaving the compound of “Jivan Jyot”. After reaching the place of the alleged offence, Phansalkar learnt from a doctor that Ahuja was dead and he also made enquiries from Miss Mammie, the sister of the deceased. He did not record the statement made by Puransingh. But later on between 10 and 10-30 p.m. on the same day, Phansalkar made a statement to Inspector Mokashi what Puransingh had told him and that statement was recorded by Mokashi. In the statement taken by Mokashi it was not recorded that Puransingh told Phansalkar that the accused told him why he had killed Ahuja. When Phansalkar was in the witness-box, to a question put to him in cross-examination he answered that Puransingh did not tell him that he had asked Nanavati why he killed Ahuja and that the accused replied that he had a quarrel with the deceased as the latter had “connections” with his wife and that he had killed him. The learned Sessions Judge not only allowed the evidence to go in but also, in paragraph 18 of his charge to the jury, referred to that statement. After giving the summary of the evidence given by Puransingh, the learned Sessions Judge proceeded to state in his charge to the jury:

“Now the conversation between him and Phansalkar (Sub-Inspector) was brought on record in which what the chowkidar told Sub-Inspector Phansalkar was, the servants of the flat of Miss Ahuja had informed him that a Naval Officer was going away in the car. He and the servants had tried to stop him but the said officer drove away in the car saying that he was going to the Police Station and to Sub-Inspector Phansalkar he did not state about his admission made by Mr. Nanavati to him that he killed the deceased as the deceased had connections with his wife. The chowkidar said that he had told this also to sub-Inspector Phansalkar. Sub-Inspector Phansalkar said that Puransingh had not made this statement to him. You will remember that this chowkidar went to the police station at Gamdevi to give information about this crime and while coming back he was with Sub-Inspector Phansalkar and Sub-Inspector Phansalkar in his own statement to Mr, Mokashi has referred to the conversation which he had between him and this witness Puransingh and that had been brought on record as a contradiction.”

The learned Sessions Judge then proceeded to state other circumstances and observed, “Consider whether you will accept the evidence of Puransingh or not.” It is manifest from the summing-up that the learned Sessions Judge not only read to the jury the evidence of Phansalkar wherein he stated that Puransingh did not tell him that the accused told him why he killed Ahuja but also did not tell the jury that the evidence of Phansalkar was not admissible to contradict the evidence of Puransingh. It is not possible to predicate what was the effect of the alleged contradiction on the mind of the jury and whether they had not rejected the evidence of Puransingh because of that contradiction. If the said evidence was not admissible, the placing of that evidence before the jury was certainly a grave misdirection which must have affected their verdict. The question is whether such evidence is legally admissible. The alleged omission was brought on record in the cross-examination of Phansalkar, and, after having brought it in, it was sought to be used to contradict the evidence of Puransingh. Learned Attorney General contends that the statement made by Phansalkar to Inspector Mokashi could be used only to contradict the evidence of Phansalkar and not that of Puransingh under S. 162 of the Code of Criminal Procedure; and the statement made by Puransingh to Phansalkar, it not having been recorded, could not be used at all to contradict the evidence of Puransingh under the said section. He further argues that the alleged omission not being a contradiction, it could in no event be used to contradict Puransingh. Learned counsel for the accused, on the other hand, contends that the alleged statement was made to a police officer before the investigation commenced and, therefore, it was not hit by S. 162 of the Code of Criminal Procedure, and it could be used to contradict the evidence of Puransingh. Section 162 of the Code of Criminal Procedure reads:

“ (1) No statement made by any person to a Police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

“Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by, the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.”

The preliminary condition for the application of S. 162 of the Code is that the statement should have been made to a police-officer in the course of an investigation under Chapter XIV of the Code. If it was not made in the course of such investigation, the admissibility of such statement would not be governed by S. 162 of the Code. The question, therefore, is whether Puransingh made the statement to Phansalkar in the course of investigation. Section 154 of the Code says that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station shall be reduced to writing by him or under his direction; and S. 156 (1) is to the effect that any officer in charge of a police-station may without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIV relating to the place of inquiry or trial. The evidence in the case clearly estasblishes that Phansalkar, being the Station House Duty Officer at Gamdevi Police-station on April 27, 1959, from 2 to 8 p.m., was an officer in charge of the Police-station within the meaning of the said sections. Puransingh in his evidence says that he went to Gamdevi Police-station and gave the information of the shooting incident to the Gamdevi Police. Phansalkar in his evidence says that on the basis of the information he went along with Puransingh to the place of the alleged offence. His evidence also discloses that he had questioned Puransingh, the doctor and also Miss Mammie in regard to the said incident. On this uncontradicted evidence there cannot be any doubt that the investigation of the offence had commenced and Puransingh made the statement to the police officer in the course of the said investigation. But it is said that, as the information given by Puransingh was not recorded by Police Officer Phansalkar as he should do under S. 154 of the Code of Criminal Procedure, no investigation in law could have commenced within the meaning of S. 156 of the Code. The question whether investigation had committed or not is a question of fact and it does not depend upon any irregularity committee in the matter of recording the first information report by the concerned police officer. If so, S. 162 of the Code is immediately attracted. Under S. 162 (1) of the no statement made by any person to a Police-officer in the course of an investigation be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. But the proviso lifts the ban and says that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing, any part of his statement, if duly proved, may be used by the accused to contradict such witness. The proviso cannot be invoked to bring in the statement made by Phansalkar to Inspector Mokashi in the cross-examination of Phansalkar, for the statement made by him was not used to contradict the evidence of Phansalkar. The proviso cannot obviously apply to the oral statement made by Puransingh to Phansalkar, for the said statement of Puransingh has not been reduced into writing. The faint argument of learned counsel or the accused that the statement of Phansalkar recorded by Inspector Mokashi can be treated as a recorded statement of Puransingh himself is to be stated only to be rejected, for it is impossible to treat the recorded statement of Phansalkar as the recorded statement of Puransingh by a police-officer. If so, the question whether the alleged omission of what the accused told Puransingh in Puransingh’s oral statement to Phansalkar could be used to contradict Puransingh, in view of the decision of this Court in Tahsildar Singh vs. State of U. P., (1959) 2 Suppl. SCR 875, does not arise for consideration. We are, therefore, clearly of the opinion that not only the learned Sessions Judge acted illegally in admitting the alleged omission in evidence to contradict the evidence of Puransingh, but also clearly misdirected himself in placing the said evidence before the jury for their consideration.

27. In addition to the misdirections pointed out by the High Court, the learned Attorney-General relied upon another alleged misdirection by the learned Sessions Judge in his charge. In paragraph 28 of the charge, the learned Sessions Judge stated thus:

“No one challenges the marksmanship of the accused but Commodore Nanda had come to tell you that he is a good shot and Mr. Kandalawala said that here was a man and good marksman, would have shot him, riddled him with bullets perpendicularly and not that way and he further said that as it is not done in this case it shows that the accused is a good marksman and a good shot and he would not have done this thing, this is the argument.”

The learned Attorney General points out that the learned Sessions Judge was wrong in saying that no one challenged the marksmanship of the accused, for Commodore Nanda was examined at length on the competency of the accused as a marksman. Though this is a misdirection, we do not think that the said passage, having regard to the other circumstances of the case, could have in any way affected the verdict of the jury. It is, therefore clear that there were grave misdirections in this, case, affecting the verdict of the jury, and the High Court was certainly within its rights to consider the evidence and come to its own conclusion thereon.

28. The learned Attorney-General contends that if he was right in his contention that the High Court could consider the evidence afresh and come to its own conclusion, in view of the said misdirections, this Court should not, in exercise of its discretionary jurisdiction under Art.136 of the Constitution, interfere with the findings of the High Court. There is force in this argument. But as we have heard counsel at great length, we propose to discuss the evidence.

29. We shall now proceed to consider the evidence in the case. The evidence can be divided into three parts, namely, (i) evidence relating to the conduct of the accused before the shooting incident, (ii) evidence in regard to the conduct of the accused after the incident; and (iii) evidence in regard to the actual shooting in the bedroom of Ahuja.

30. From the consideration of the entire evidence, the following facts emerge:The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in has hand. The deceased was found dead in his bath-room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt to the chowkidar Puransingh and practically admitted the same to his colleague Samuel. His description of the struggle in the bathroom is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.

31. We, therefore, unhesitatingly hold, agreeing with the High Court, that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him.

32. In this view it is not necessary to consider the question whether the accused had discharged the burden laid on him under S. 80 of the Indian Penal Code, especially as learned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section.

That apart, we agree with the High Court that, on the evidence adduced in this case, no reasonable body of persons could have come to the conclusion which the jury reached in this case. For that reason also the verdict of the jury cannot stand.

Even so, it is contended, by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the offence would fall under Exception 1 to S. 300 of the Indian Penal Code. The said Exception reads:

“Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the following conditions are complied with: (l) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-control, (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

33. The First Question Raised Is Whether Ahuja Gave Provocation To Nanavati Within The Meaning Of The Exception And Whether The Provocation, If Given By Him, Was Grave And Sudden.

34. Learned Attorney-General Argues That Though A Confession Of Adultery By A Wife May In Certain Circumstances Be Provocation By The Paramour Himself, under different circumstances it has to be considered from the standpoint of the person who conveys it rather than from the standpoint of the person who gives it. He further contends that even if the provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocation given by Ahuja was only in the past.

35. On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness of the provocation it is not the mind of the person who provokes that matters but that of the person provoked that is decisive. It is not necessary to express our opinion on the said question, for we are satisfied that, for other reasons, the case is not covered by Exception 1 to S. 300 of the Indian Penal Code.

The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of adultery by his wife in the manner in which the accused did. In Mancini vs. Director of Public Prosecutions, 1942 AC 1 at p. 9, Viscount Simon, L. C., states the scope of the doctrine of provocation thus:

“It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death . . . . . . . ….. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex vs. Lesbini, 1914-3 KB 1116 so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”

Viscount Simon again in 1946 AC 588 at p. 598 elaborates further on this theme. There, the appellant had entertained some suspicions of his wife’s conduct with regard to other men in the village. On a Saturday night there was a quarrel between them when she said, “Well , if it will ease your mind, I have been untrue to you”, and she went on, “I know I have done wrong, but I have no proof that you haven’t – at Mrs. X.’s”. With this the appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simnon, after referring to Mancini’s case, (supra) proceeded to state thus:

“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.”

“Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control’, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. . … . . . .. . . What matters is whether this girl (the accused) had the time to say:’Whatever I have suffered, whatever I have endured, I know that Thou shall not kill’. That is what matters. Similarly. .. .. .circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation. Provocation being. . . . . .. . as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind. .. . .. . Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation-that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given.”

A passage from the address of Baron Parke to the jury in R. vs. Thomas, (1837) 7 C and P. 817 extracted in Russell on Crime, 11th ed., Vol. I at p. 593, may usefully be quoted:

“But the law requires two things:first that there should be that provocation; and secondly that the fatal blow should be clearly traced to the influence of passion arising from that provocation.”

The passages extracted above lay down the following principles: (1) Except in circumstances of most extreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self-control; and it must be distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, before there was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation.

36. On the other hand, in India, the first principle has never been followed. That principle has had its origin in the English doctrine that mere words and gestures would not be in point of law sufficient to reduce murder to manslaughter. But the authors of the Indian Penal Code did not accept the distinction. They observed:

“It is an indisputable fact, that gross insults by word or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart.”

Indian courts have not maintained the distinction between words and acts in the application of the doctrine of provocation in a given case. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation, and (2) what is the effect of the time lag between the act of provocation and the commission of the offence. In Empress vs. Khogayi, ILR 2 Mad 122, at p. 123 a division bench of the Madras High Court held, in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of self-control. The learned Judges observed:

“What is required is that it should be of a character to deprive the offender of his self-control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was at the time of the provocation. In the present case the abusive language used was of the foulest kind and was addressed to man already enraged by the conduct of deceased’s son.”

It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased’s son. The same learned Judge in a later decision in Boya Munigadu vs. The Queen, ILR 3 Mad 33 at pp. 34-35 upheld the plea of grave and sudden provocation in the following circumstances:The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them, and at that time he saw his wife eating food along with her paramour; he killed the paramour with a bill-book. The learned judges held that the accused had sufficient provocation to bring the case within the first exception to S. 300 of the Indian Penal Code. The learned Judges observed:

“ . …….. . . . . If having witnessed the act of adultery, he connected this subsequent conduct, as he could not fail to connect it, with that act, it would be conduct of a character highly exasperating to him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned and that they purposed continuing their course of misconduct in his house. This we think, amounted to provocation, grave enough and sudden enough to deprive him of his self control, and reduced the offence from murder to culpable homicide not amounting to murder.”

The case illustrates that the state of mind of the accused, having regard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception. Another division bench of the Madras High Court in In re. Murugian ILR (1957) Mad 805: (S.) AIR 1957 Mad 541) held that where the deceased not only committed adultery but later on swore openly in the face of the husband that she would persist in such adultery and also abused the husband for remonstrating against such conduct, the case was covered by the first exception to S. 300 of the Indian Penal Code. The judgment of the Andhra Pradesh High Court in In re, C. Narayan AIR 1958 Andh Pra 235 adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by, another strangled his wife to death, and held that the case was covered by Exception 1 to S. 300 of the Indian Penal Code. These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self-control.

37. Where the deceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentent said that she would again do such acts, and the accused, being enraged, struck her and, when she struggled and beat him, killed her, the Court held the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exception to S. 300 of the Indian Penal Code. So too, where a woman was leading a notoriously immoral life, and on the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct she vulgarly abused him, whereupon the husband lost his self control, picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad vs. Emperor, AIR 1929 Lah 861 at pp. 862-863 held that the case was governed by the said exception. The following observations of the court were relied upon in the present case:

“In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow which ultimately proved to be fatal, was struck, that is to say, one must not take into consideration only the event which took place immediately before the fatal blow was struck. We must take into consideration the previous conduct of the woman . . . . .. . . . . . . . . . .. . ….. . . . ………………… …….. …….. As stated above, the whole unfortunate affair should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death.”

A division bench of the Allahabad High Court in Emperor vs. Balku, ILR (1938) All 789 at p. 793 invoked the exception in a case where the accused and the deceased, who was his wife’s sister’s husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot and going to another room and having sexual intercourse with his (accused’s) wife, and the accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed him to death. The learned judges held:

“When Budhu (the deceased) came into intimate contact with the accused by lying beside him on the charpai this trust have worked further on the mind of the accused and he must have reflected that ‘this man now lying beside me had been dishonouring me a few minutes ago’. Under these circumstances we think that the provocation would be both grave and sudden.”

The Allahabad High Court in a recent decision, viz., Babu Lal vs. State, AIR 1960 All 223 at p. 226 applied the exception to a case where the husband who saw his wife in a compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed:

“The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden pravocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any the less sudden.”

All the said four decisions dealt with a case of a husband killing his wife when his peace of mind had already been disturbed by an earlier discovery of the wife’s infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind.

38. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision:it is for the court to decide in each case, having regard to the relavent circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

39. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

40. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But, if his version is true-for the purpose of this argument we shall accept that what he has said is true – it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1-30 p.m., when he left his house, and 4-20 p.m. when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused-though we do not believe that – it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to S. 300 of the Indian Penal Code.

41. In the result, the conviction of the accused under S. 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct, and there are absolutely no grounds for interference. The appeal stands dismissed.